SUCCESSION 591 EDA LAW CENTRALIZED BAR OPERATIONS ~ EMORY’ AWD 2019 inds of Succession: SUCCESSION 1. Testamentary or Testacy— by will (CIVIL CODE, Att. 779); ‘abezession 2. Legal or intestacy ~ by operation of law based A mode of acquisition by virtue of which the property, an seonena 's presumed will (CIVIL. CODE, Tights and obligations to the extent ofthe value of the 5a Ms eel intapsSlea-FA) 6 (or. GbE. vt 780) Art. 130 of the Civil Code which is contractual in geil ohauladigle Stack nd aired ony dram 1. Right to dispose Private Property fate, property By resson of mariage. qrade-by. fier hose ght oben poe Bnet he ane spouse tothe oer (JURADO, Succession, has the power to dispose of such propery freely, sunie a1) Frpenng aieh leona ae eneona Wray oon convenient Corsccnen, ha iy Tautou alse sags a tosarnt dale more Dien bn insane of alienation conditioned upon ‘his death uRADo, Cocmmente and sratecsseion on Succession, (2008), p. 2) hereinatef, JURADO, Succession]. imhentarice, of a person are transmiied through ris death to another or others either by his will or by ‘operation of law (CIVIL. CODE, Ait. 774). Requisites for Transmission ot. Sueéessional Rights: 4. That ind@éd there has been’ death (actual or presi) ZoThat_the. rights or properties are indeed Piransinisible or discernible ‘That lio Fapstetee is slave (no predacdesé), i 's willing (0 cepudiation), and is capacitated to Note: This ~is the. basis” Ot testamentary” inhetit (3 PARAS, Civil Code of the Philippines succession. Lf © oye Annotated, . p. 12-13) ersinatier, 3 2. Family Co-ownership. | "/ | ATTAIN GN ifthe family is recoghizet'as.thé feat and-sou! of society, the Idea of” syecessign must, therefore, revolve around it. Hence, the basis. of succession ese upon icf onmer 8) Refers to the universality of all the property rights and obligations. of a! decedent, which are-not| extinguished by’ his: death (CIVIL CODE, Art 778): -/ to..." the| Gefsons. entitled ty. it (lull COPE. art 774. 3. Eclectic Theory ‘This theory tries to harmor FAN es" duel “and” sod. ethersot principles, the basis of success fecogrized,,nesessily ot perseualg) pants——| patrimony beyond the limi’ of oe (Id. at 2-3). EXECUTIVE conmirrreR © sunject comirrTEE : MARY CYNELL C.SUMANQUT” MA.” CRISTINA D. ARROYO Deon ED. VINCENT. Overall Chorperan, ERICA, Sabjet Cha, MARY. CHERWYN KB ‘AUIANO Dean ULPIANO'P MEE vist hotpcan/or CASTES usan obit GHAIMIE. ROSE DINE, XSANMIRNTO, IL Ay ‘Acadenien "BEN. Chal, IAYSON B HIQUIANA. ROMANO, =o MANUEL 8, cASIBG, ‘any ARSERG Chaijonon fH Stes Become Data Preeae, JANINE. “CARELLE “DANTE O.DELA CRUE Ay Operations JHELSEA LOUISE R- -MARIA ANGELICA fe LOVERIA - GASCON, MA. CHERUE JANE ~ ROWELL DL MAGAN, hy. DIMAANO Vice Chairprsn or Canlet of Laws, SOPHIA. Gi LABANGCO,: MARIELA JOSEDIT FERDINAND ML Sterna EARL JUSTIN. MM VICTORIA'S, NINA’ Posies and” MAB, MAMARIL JENMA Z.-DECHAVEZ, Ay. TERESA YAMBAG' Ve Chern for" Family Relations JOANNA OYALES DENISE" ‘D._ GENEVIEVE UEVE.CO, Gpertons MA ANGELICA B. ELIZABETH KAMA" C: MADANDA, DONNA KXS.2. DELEON Viee Chtperon for MALCONTENTO.. Property end _ GOMEZ, JASON JEREMIAH, Findnce,ARRA” OLMAYA”). “Lind “Tas and’ Deeds KEVIN NUNES, GERARD CEASAR 8: : BADANGAN Vice Chavperion CHRISTIAN" A. -PASION - BAGUIO, CAMILLE C.CElzZ0,~ 7 for duit JORDANN, CHAVEZ. Suesian, JAMIL P. DALIDIG. -MORNS MEDEL F.SOLANO, Vis Ciperon fr EDP ANZ Obligations and Canrac, JOSE MAURICE ROMEO. V. DARRYL D.TIU. Vier KEIRVIN ANTHONY 8. VIADO ” SALVACION, 1018 RENEE. : ‘Chargers Lagies and Sales and beese, KORINA CES M TOBON, CZESKA JOUANN DOH ALFIED E AQUILIZAN ~ CUEVA Forneship- and Agerey,” CO.~ JEANNE PAULINE, F VieeChaipenon forMenbesi MARIA. ANA. “ANGELA T: RESURRECCION, = MARIA SIMPAO ‘Cre Transactions, EMIIA A. SIBAL, JERRIC B. 3 GWZELLE "KARINA DG. - CRISTOBAL ~ MONTERO Tore and Damages ‘ADYISERS!Elements: 4.. Subjective SUCCESSION “SAN EDA LAW CENTRALIZED BAR OPERATIONS ~ MEMORY A 2019 “and Elements: Decedent ‘Successors Decedent ‘The person whose property is transmitted through succession, whether or not he left a will CIVIL CODE, Art. 775): Testator if he let a wil b. Decedent - ithe left no wil Successors habientes) i (Tfansferees or Causa Hes — Thuse whu aie called 16 the whole or to an aliquot. portion of the inhertance either by will o by operation ‘of law (CIVIL CODE, Art. 782) 4.) Compulsory/Forced = Those ‘who Succeed by force of laiv to some “portion of thé inheritance. in’ an ‘amount predetermined by Art. 886). 2y virtue of the will of the testator, to the whole or aliquot part c defosane” tee pogegeer they natecany ectate Thee thn tiotamentany Ppedcessiod” (WURADO, Succession. supra at 186); and’ ms *< Note: A porson fy 65s eho dnd voluntary her ating eae ime: iho Some il (duel sty hoi Ths hoppers hen sig IH 8 compulsory heir is given moré!than his. eee ape ‘concerned, hé is a compilsory: heir. Insofar asthe excess is cor ad, he [oa voluntary hol (3 PARAS. supra ot 35) 3)-Legalintestate — Those who succeed by operation of law when legal or intestate succession takes place. Thoy are classified as: 8.) Those who inherit in their own right; and b) Those: who: inherit by right of representation. Deviseds = persons té whom gis of ral property. are aiven by virtue of a will (CIVIL CODE, art 782). Legatees — persons fo whom gits ot personal property aro given by virtue of will (CIVIL CODE, Art. 782): Lawes known as legitime’ (CIVIL-CODE, Voluntary ~ Those who succeed by. A ofthe re Pieeeaeenee | Eee Universal ttle; Particular tile; Succeed to an|Succeed to individual indeterminate __or| items of property. aliquot portion. * Poni son ‘Suceeed bymeans ot a| Succeed by.means of al lwil oe hy onaration of|will only (CIVIL CODE. law (CIVIL CODE, Art| Art. 762): 782) Teens inction. must «, be| Gene [As a rule, the devises or| ‘made between heirs in|legacies are chargeable figstate. succession | against the free portion. (compulsory and Hyoluntary) and heirs in Intestate succession ee ~ gy ett isto deteniine the portion of the.estate. aN | Exentoninheriianes inherits ah aliquot patt| Must be: specified by the o,f nagar fester portion ofthe esta : Note: The. distinction sbetween’ heirs and “HB legates are’ significant in the -followirg sane (PIA) % Breterition (CIVIL CODE, Art 854); Imperfect ssinneiance (CIVIL CODE, “Art 918); il. After-acquired 5 55+ CODE: Ant: 799). propéities' (CIVIL ~ Voluntary Heirs v. Devisees or Legatees [Annul- entirely the] Valid insofar as they ar| institution of heirs (CIVIL not inofficious” (CIVIL CODE, At.854). | CODE, Ari. 854), Fics eanercse cece Gipimieaelces [Annu the institution ‘of| Valid insofar as they are heirs to the extent that| not inofficious. (CIVIL. the logitime of, the| CODE, Art. 978). disinherited «heir is 5 prejudiced (CIVIL © leone, ad. 918). 2018 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 257Pane eon cee Scenic hl Iuiheai-everyibinng a the lime .of the. testator's death (JURADO, ‘Sucnession. supra at Ater-avquled properties shall _only| pass thereby, as if.the| festaine had possessed 36). it at the time of the| making of the wil [should it expressly Jappear by the. will that ‘such was his intention. (CIVIL CODE, Art.793). Reason: It does ot apply tothe heirs because the heirs inherit] everything at the time of| the tostators death, Tho timo. of death is. tho determining pointot the the| heirs will jnherit,\not the makings the, wil-(Seo| CIVIL CODE; Ait, 776|- and; YR, Muetration: % doops to PoP tie estao, Ho also desionsied to 8 his carwith- Dlete number GVG-101. no 1 ine hel Who is the eaatee? _ wil.X gave alot his car. X ded 18s Atiha time of the execution of the wil Xf only 2cars. Assuming that in 1995 X already thes200 cale, how meny cao wil vil Answer: Y, a legatee, will only get 2 cars heaiice thie remaining ~ears are -afler- acquired. properties. “As. a. ule, after acquired properties shall only pass, asif the testator had: possessed al. the time. of, the: making of. the will, should: it. expressly appear by the will that such. wae his intention. (CIVIL CODE, Art. 793). Here, it oes. not expressly ‘appear that, was. XS intention, to pass: even. his after-acauired properties. Hence, ¥ shall only get 2 cars. 208 | ZOI9 SAN BEDA LAW CENTRALIZED BAR OPERATIONS, MANY SUCCESSION 2. Causal Element: Death When Right to Successivn is Trausunitted The fights to the succession are transmitted from the moment of the death of the decadent (CIVIL. CODE, Art. 777). This rule appiies to the 2 kinds of death: a. etal; and b.. Presumptive. Note: It is not tradition (delivery) that transfers ownership, but succession. The effects of the acceptance °of inheritance retroact to. the moment of death (3 PARAS, supra at 16). Bofore Death No heir ay enter nto a contract with respect to this futuro share in the. inheritance because at this point.the hols have only a mere hope or expectancy, absolutely inchoate in characte, to their share inthe inheritance (JURADO, ySWecession, supra at 9) Any dontrlet entered into with respect to future ‘nhenfance would have no-object whatsoever, ~and aaa.consegiience, would be inexistent fram thie beginning (ld read in connection with par. 2 OF Ait. 1947/f the Ci Code), General Rue: Na Gontat may be entered ino BURY. hist loiphtcs’wicanl in easee * expressly autliorized by law (CIVIL CODE, Art. ie Exception’: S Donations propter nyptias. by the future “7 spouses to, each oti of future property > _WORADOSSutession, supiaat 9), anu _ be Paiilons ier vives made by a person of ‘his estate among his here (CIVIL CODE, San“1nao} ‘After Death ‘ter death, the héirs own the property, subiect to the decedent's labilties (3 PARAS, supra at 31), Hones, by viruie of their ‘wnership, the - heirs may enter into a.contract with respect to ~ his share in the inheritance even before paritton has beer effected (JURADO, Succession, supra at 89). By virtue of succession, prior settlement of the ‘stale Is. not necessary Tor any of tne ners to acquire legal capacity. to sue. Heirs: can commence an action originally pertaining to the decedent (Emnace v. CA, C.R. No, 126394, November 23, 2001). ‘The-fact that the hereditary estaie is. placed under -adihinistration” will not affect the application.of Art. 777(JURADO, Succession,SUCCESSION AN EDA LAW CENTRALIZED BAR OPERATIONS - MEMORY AD o¥9 ‘supra at 42). However, an-heir cannot compel the administrator to deliver to him his respective portion without order of the court (Id. at 13). No ugicial deciaration oF nelrsnip Is necéssary in order that an heir may assert his or her right to the property of the deceased. Under the Civil Code and Code of Civil Procedure, the tlle to the properly owned by a person who dies Inlestale passes al ones Io his helis. Such transmission is subject to. the claims of administration and the. property may be taken from the heirs for the purpose of paying debts ‘and expenses. Without some: showing thal a judicial gdministrator' had Been appointed int proceedings to settle the estate, the right of the heirs to. mairitain. such: action is established (Gloria-Payduan v. Builders Savings and Loan Association, G.R. No. 202324, June 4, 2018). Determination of the Time of Death in Case of Presumptive Doath General Rule: The time when the absentee actually died must be proved in accordance with the ordinary rules ot evidence (JURADO, ‘Suscession, supra at 11). d ~ Exceptions: A a, Ordinary Absence It the death cannot be,provea by orainary, rules of evidence, the absentee'is presumed to have died at the time of the expiration.of | the period designated Dy Jaw. Rules: 170 years ithe disappeared the age 0f 75 or below. ji, Syearsithe disappeared alter ie age of 75 (CIVIL. CODE, Art. 390»par.2). Note: The death’ is presumed to have occurred atthe,end of the 10-year or 5-year period (JURADO, Succession, supra at 11) b.” Extraordinary Absence A person shall be considered dead after having’ been missing for 4-years under the following circumstances: (VAD) J. If he is on board a Vessel lost during a sea voyage, or an-aeroplane which is missing, who has not been heard of since the loss of the vessel ot aeroplane: ii. Ihe is in the Armed forces who has taken part inwar, and has been missing; or ii, fhe has been in Danger of death under other circurnstanices and his existence has not been known (CIVIL CODE, Art 391). Note: The person is presumed to have died ‘at he Une Uf the disappear aries, ie, at the time the calamity took place, and not at the tend of four (4) years (JURADO, Succession, supra at 12), The succession really took place four years before (on the day'of the disappearance), but actual division will only be at the end of four years. In other words, from the begining of the said four years, the heir shall ‘be considered the owner — and possessor of the property, and not only from the end thereof (3 PARAS, supra at 18). In both cases, the succession is only of provisional character. because there always the chance that the absentee may still be alive (Id). Note: If there is doubt, as between two or Inuie persons who are called. to succeed ach other, as to which of them died first, hg alleges te death of ne prior the ér shall prove the same; in the absence oy proof, its presumed that they died at the game Uiye and rete shall be no snsmissi6n of tights front one to the olher (CIVIECODE? Art. 43) Effect _ of ‘Appearance The absentee shall recover his property in the'condition in which it may be found, and. the price of any property that may have been alienated or the property acquired therewith; ut he cannot ciaimeither fruits: or rents. -- (CIVIL CODE, Art: 392)."If the hele hed already spent. the. money there is. no obligation to reimburse, in as much as the Consumption had been made: in. good faith 1G PARAS, supra at 18-19). ‘Absentee's Return or 3. Objective Element: Inheritance Inheritance includes: a. All properties of the decedent existing at the time ofhis death tothe extentof the value of the inhetitanes (CIVIL CODE, Art. 776 and A 1311)... Restricted Concept of Inheritance Until final liquidation is made and alf debts left by the decedent are fully paid, the right of the heirs to inherit remains inchoate or is ‘a mere ‘hope or expectancy. Liquidation is necessary to” determine whether . the decedent fias left assets. which: may be 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 259his heirs transmitted Succession, supra at 5). to (JURADO, Note: Tho mortal remains of the decedent form part of the. inheritance, as may be gleaned from R.A. 349, as amended by RA. 1056. Thus, a person may validly grant to a licensed physician, surgeon, scientist or any medical or scientific institution, the authority to detach at any time after his death any ‘organ of his body (Id. af 17-18). All transmissible rights. and obligations existing at the time of decedent's death to the-extent of the value af inheritance (CIVIL, CODE, Art. 776 and Art: 1341). Rights not extinguished by death which are therefore part of the estate: 1 Right to bring ar continue an ation for forcible entry or unlawful detainer Right to. compel: the'execullon ot a \_/ document necessary for convenience; provided. the contraéi“js,-vald” and satoreoable Right to continue lease conrdet Property right in.-an isurange policy with am itevgeable designation @ PARAS, supra at 2)" { “Obligations. not extinguished: Py death which form part ofthe estate General’ Rule: |All obligaiohs\. are transmissible unless, purely), personal (ike obligation to support) oF non-tansferabieby, Jaw or contract (at 8) Section Sof Rule 86 of the Rules BhGourt _oxpressly-allows the prosecblion of claims claims are not actually extinguish Whatever monetary libiites or obligation the deceased ad tincer hi contracts with creditors were not intransmissible by, theit nature, by stipulation, or by provision ot aw “Hence, his, death- did -not result’ in’ the: extinguishment of those. obiigations or labities, whith mevelypasseal on ty his estate (Stronghold Insurance Go... Ine: v. RepublioAsahi “Glass. Corp, G.R. No. » 147561, June 22, 2006 citirig Pavia v: De La Rosa; GFN: L-3083; March 18, 1907) ‘The right of action for the acknowledgement ofa: natural. childis..extinguished by his death because no express provision like that of Art.148 of the then Civil: Code on the acknowledgement of. legitimate’ children 260 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS : Note SUCCESSION ‘a4 B60 LAW CENTRALIZED BAR OPERATION exists, As such, the right of action cannot be transmitted to and enforced by:his mother (Gonde v. Abaya, G.R:No. 4275, March 23, 1909) Note: It must be remembered, however, that the Family-Code limits the classification of children oniy:to legitimate and-illecitimate chiléren (JURADO, Succession, supra, at 292) The action’ to. claim: legitintacy for both legitimate and illegitimate children may be brought by the child: during hisfher.tfetime ‘and’shall be transmitted to the heirs should the child die during minorityor in a state of insanity: In these cases, the heirs shall have ‘a period of five (5).years within which. to institute the action (FAMILY CODE, Art 173) Rights and Obligations extinguished by death: "SE" Rigbls, and ~ obligations between = Shisha: and wifes =) : Property\ relations’ between: husband and wife; ‘Action fot legal separation ‘Action to.cdmpel acknowledgment of a natural chil; Acion"(: obtain judicial dectaation of Sleaiate filation. of an legitimate -/~ child Who ig not nature Pafeital authority or pata potesta lhe off quarclan; vil, Right to“teceive-and the obligation to give support; “ie}>Right (© hola public office. as well as Nhe ight fo ‘exercise profession or ‘rocation; acceplable as. a /Velid. signature, provided it can be propetly’establistied thatitis the testator’s usual signature or é at least one of the way by which he had signed his name before. (Leario -v. Leafto, G.R. No} 9150, March 3, 1915) if writing a mai is a’Sufiient indication of anintention t make a will ben writing a portion of all of her name is:ageented: as a clear indication of her infehion. In this case the decedent ysed her fet _ name. "Tomasa".\(Yap Tua..voyYap'S Gakuan, GIR Ho. 6985, Septebot. fOF Cj 1914), \ by Signature hy another Requisites: (TPEAW) i. = Itis the testator’s name that must have been written by the Third person; ii. The testator's name must have been wiiton in hie Presence; iis The third person must have affixed the testator’s name at his Express direction; This fact “should bo" stated. in. the Aitestation ciause; and ¥. It ghould tele place in the provoncs of the instrumental Witnesses (JURADO, ‘Succession, supra at.57). wy Note: Neither the notary nor any of the attesting witnesace ean sign in behalf of the tostator (3 PARAS, supra at 89): ‘The testator - need — not be” physically incapacitated, to ask a third person to sign the will for him, provided, that the fact of the signing 2 266 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS © SUCCESSION SA BEDA LAW CENTRALIEED BR OPERATIONS leva Ao 2019 by the third person in his presence and under his express direction, shall be stated in «the attestation clause (Garcia v. Lacuesta, G.R. No. 1-4067; November 29, 1951) Place of signature (either by the testator or by another}: End of the will otherwise, void (Id). End of Will Refers. to the logical end, which is the point where’ the testamentary dispositions: terminate (TOLENTINO, Civil. Code. of the Philigpines Annotated, (2013), p. 70 hereinafter, 3 TOLENTINO)) When Article 605 of the Civil Code requires the testator to subscribe at-the end of the wil, it necessarily refers to the logical end thereof which is where the lasttestamentary disposition ends. In this. case, the last page of the will does natcantain any Testamentary disposition; itis but \/ a/merescontinuation of the. Acknowledgment (Mitra ve Sablan-Guevarra, G.R. No. 213994, Api 18,2018), 16-2 “wil:staris’on the first. page, continuesion the third page; but is concluded on the eecond'piage the latter is the logical end (3 PARAS, supya.at87) If thp-tedtor's firstname appears, ine surmame, the wis vol (Yap Tua Ga Kuali“. No, 6848, September ~ARt3). The wil remains Vad even though the Note Zh slogans ig/misspolled, abbreviated; or is only by miexname, or by “Father or fer” oF nan assumed name, rovised the teslatogintnted the same be hi signature (9 i pupa at 87-88), SS pathoess: ‘a: To show ‘that the, testaientary: purpose therein expressed is completed; b. To. prevent any opportunity for fraud. or interpolation’ botwoon the wiritlen -matior and signature; and > The position of the signature isan internal evidence of finality or complation ‘of intent | GURADO, Succession, supra at'59). Attestation and Subscription ‘Attestation is the. act of three (3) or more ‘credible witnesses of withessing the execution of the will in the presence ofthe testator aid of ‘one another in ordor to coo and take. note ‘mentally that such wil has been executed in ‘accordance withthe requirements prescribed by law. Strictly ‘speaking, it is the act of the witresses and not that of the testator.SUCCESSION SAN GEDA Ly CENALIZED BAR OPERATIONS ~ MEIORY AD 2019 Subscription consists in the manual act of the instrumental witnesses in » affixing their signatures to the instrument for the purpose of identification (la. at 59-60). Purposes of Reauirina Witness to Attest and to Subscribe to a Will: (PIPA) \ 12. Protection’ of the teatator from fraud ‘ond ‘deception; Identincation of tne instrument, To render available Proof during probate proceedings that the will has been executed in gooordanes with ‘tho requiramonte prescribed. by law and that the instrument Offered tor probate ts authentic; and The Ascertainment of..the testamentary ‘capacity of the testator (ld. at 60-61). b. e Attestation v. Subscription ut ‘Attestation clausé may be placed" at the beginning of the will Pigcing tat then is only for convenience (at 60). fend of the wil, Order of Signing As long as. the signing is. done within the presence of one another, it really: does not matter much whether the witnesses” signed ahead of or after the:-testator as long as the Signing ie sulienty contemporaneous (I af 60-61). “in.the presence” ‘Ths executionof a will cannotbe legally effective ifthe various participants signed on various days or occasions. and in various combinations of those present (Andalis v. Pulgueras, G.R. No. 39209, March 10, 1934). sa While it may be frue that the afestation clause is-indeed subscribed at the end thereof and at the: loft margin of ‘each page by.the three, altesting witnesses, it certainly ‘cannot be conclusively inferred therefrom, that the sald witnesses alfixed their respective’ sionatures in the presence of the testator and of each other zinoo, a9 petitioners edrrostly observed, the presence of said signatures only establishes the fact that it was indeed signed, but it-does not prove that the aitestiig witnesses did subscribe to.the will in the presence of the testator and of each othar. Tho execution of a will ie euppoced fo be one’act so that where the testator and the ‘witnesses sign-on. various: days: or occasions. and in various combinations, the will cannot be stamped with. the imprimatur -of effectivity (Caneda v. Court of Appoals, G.R. No. 103554, May 28; 1993). The ohrase does not necessarily require actually seeing, but the possibilty of seeing without any physical obstruction (laboneta v. Custlo, O.R. sp No. 1644, January 19, 1906). Dead When a person merély has his back turned, the _ signing J8) done in his presence since he could have ast ‘his eyes inthe proper direetion abot vi Gustilo, GR. ‘No. 1641, Jenuary 19, spo} i “ tach hat signatures wa8 not done “in the te athe oe Saree sees will, but also, of ita duo A gy the testator and the other subscribing witnesses . | ocspwresimpeded bya carta separating hem alte Thoment of inscription of each signature (Nera v. ‘Rimando, G.R. No. L-5971, February 27, 1911): Incase the testator is blind, the presence may ‘be complied with ifthe signing or actin is within the range ofthe othersenses lke Rearing, touch, elc,, of the testator (3 PARAS, supra at 89). Test af Procance: “The true test of vision is not whether the testator actually save the witness sign; but whether he ‘might have seen him sign, considering -his. mental and physical condition and position at the time’ of the subscription (Jabonela y.- Gustilo etal, G.R.No. 1641, January 19, 1906): Itis not whether they autvally saw eau ules sigh, Lut whether they-might have seen each other sian had they chosen: to do so, considering their rmiontal and phycioal condition arid position with relation “to each other ‘at the moment of inscription of each signature. (Neyra v. Neyra, C.A. No, 8075, March 25, 1946). 2019 SAN BEDA LAW CENTRALIZED RAR OPERATIONS | 267‘Marginal Signatures General Rule: The testator or the person requested by-him to write his namé, and the instrumental witnesses must affix their signature Cn the left margin of each and every page of the will (URADO, Succession, supra at 87). Thete is @ mandatory-and directory part to this requirement: a. Mandatory part—the signing on every page Intheiwiinesses' presence b.Ditectory part tho place of signing, 0. the left: margin; the. signature can be. affixed anywhere on the page death (Avera v. Garcia, G.R..No. 15566, September 14, i921) (BALANE,:Jotings and: Jurisprudence. in _ Givi Law (Succession), (2016), -p. 82, hereinafter, BALANE, Succession). Exceptions: a; The'last page need not be’ sighted isthe: \_) ‘margin because, being the, page where the: end of the willis, t-already, contains the tostaor’s signature (BALANE, Succession, ‘supra at 82); \When te wl consists of one age: ana When the will consisfs of two pages, the fist of ‘which contains all’ the - testamentary dispositions and is signed atthe bottorh by. the testator and the-witesses, and thes: ‘second contains only theiattestation clause - duly-signed atthe betlog by thd, “As the-attestation clause appertal the witnesses and notto the testator, itrieed oe ened ayy inom oan 1919)., Failure to, have the marginal: signatures-of/ he ‘testator and of the witnesses; when needed. Is a fatal defect (In're: Will of Prieto, G.R. No: b=" 7188, August 9, 1954), ‘The inadvertent failure of one witness to affichis~ signattre on one page of a testament, dueto the simultaneous lifing of two pages in the course cof signing, isnot per se suffcientio justify desial ‘of probate. (Ieasiano v: Jeasiano, G.R. No. L- 18979, June 30,1964). ©. Note: This.case-must.be applied only to cases with’ similar facts. Jin‘leasiano v. Icasiano; the failure of the witness to-sign. one'page was ‘entirely through- oversight as shown by his-own testimony-as well. as by the original: duplicate copy of the will, which was'submitted to the court ‘and which bore a complete set of signatures in every page (leastano v. Icasiano, G.R. No. L-_ 18979, June 30, 1964). 268.| 2019. SAN BEDA LAW CENTRALIZED BAR OPERATIONS SUCCESSION ‘S21 BDA LAW CENTRALIZED BAR OPERATIONS ~ MEMORY AD 2019 4. Page Numberings These are written correlatively in leters placed ‘on the upper ipart of each page (JURADO, ‘Succession, supra at 73) ‘There is'a mandatory.and directory part to this requirement: ‘a. -Mandatory part ~ Pagination by. means of a conventional system. Directory part ~ Pagination which shall be rumbered vorretatively In lellers placed on the- upper part of each page. Thus, the pages may~be numbered: by mere alphabetical letters, or by Arabic Numerals, ‘or by any form of identification (BALANE, Succession, supra al 87). ‘This is not necessary when the will is written on. cone sheet only (Abangan v. Abangan, G.R. No. 113431, November 12, 1919). b. [\/ substantial compliance with’ the ~ statutory {quifementis sufficient WURADO, Succéssion, supra at 73) Purpose: 79 forestall any attempt to suppress ~ or substitute any of the pages of the will, (DE LEON, Cominenis\and Gases on Succession, (2017) p. 449: [hereinafter,, DE~ LEON, Succession) 3) s Tné Jebyious, purpose of this. iS 10 prevent 5. insettion. of “remnoval..of pages AN /Sisegtssion, supra at 87) Sto:_The law says. “page= noi.sheet (a sheet has two pages; the front and the reverse sides. ffboti*are/tised, , both. must be paged). (3 mec stipra at 87-86). astéStatton Clause (ac) Memorandum or record of facts wherein the witnesses certify thatthe will has been executed before them, and that ithas been executéd in accordance with the formaliés prescribed by law (JURADO, Succession, supra at 74). Note: It uist bo sighed by the witnesses, not by the te8tator (10) Purpose: “It is made ‘or’ the’ purpose of preserving in-a permanent form a record.of the facls that attended the execution’of a particular = will, $0,that in. case of failure of the memory of the'attesting witnesses, or other casualty, Such facts may siil’Be proved (Caheda v.. CA, GR. No: 103654, May 28, 1995). .SUCCESSION tal Contents: (SAN) a ‘The Number of pages used (CIVIL CODE, Art. 805}; Gonsrat “ule: Ine taiture to. state me ‘number of pages on which the Wil was written in the attestation clause is a fatal law (Azuola v. CA, GR. no. 122880, April 12, 2006). Exception: There is substantial compliance withthe requirement if ‘the will states elsewhere in: it,; how many pages it is comprised of,’ such “as when the Acknowledgement itself” states the. same (Mitra v. Sablan-Guevarra G.R: No. 213994, April 18, 2018, citing Taboada v. Rosal, G.R. No. L-36033 November 5, 1982). ‘There is no substantial compliance with Art. 809 if there is a discrepancy between the” number’ of pages stated the acknowledgment and the actual number off pages of the will'as it cannot be explained by mere examination of the. will iisell but through . the presentation - of evidence aliunde (Lopez v. Lopez etal G.R. Nod 189904 (Resolution), Novembert2, 2012)/ But ifthe nuinber of pages" ndtslated in any part.of the wil, andthe will, does not coniain any. notarial. acknowledgment wherein the: number of, pagestof the wil should be slated, the doctfine’set forth in Se eee setpece v.0A, et al, supra) Purpose of the Rule: To safeatiard against possible interpolation or omissionvof‘one or some -of its.,pages -and.to prevent: any increase or decrease in the pages (Azuola v. CA, GR. no. 122880, Apri 12, 2006). ‘The fact that the testator Sighed the will and ‘every page.thereof, or caused some other persoft to write his name, under his express ditection,.. in. the. . presence. of. the instrumental witnesses (CIVIL CODE, Art 805); and ‘The fact that the: witnesses witnessed and signed the wil and all the-pages thereof in the. presence of-the testator and. of-one Another (CIVIL CODE, Art. 605). » Note: i. The aitstation clause is the affair of the witnesses; tHerefore, it-need-not be signed by the testator (Fernandez v. SAN BEDA AW CENTRALIZED BAR GPERATIONS- MENORY AID 3019 a Verge! de Dios, G.R. No. L-21161, Febnuary 25, 1924) Ji, The attestation: clause need. not be written: language or dialect known to the testator nor w ine attesung witnesses since jt does not form part of the testamentary disposition (JURADO, Succession, supra at 91) ii, The witnesses must sign at the bottom ‘uf tie allestalion ulause. Note: An unsigned altestalion clause cannot be considered as an act of the witnesses since the omission. of their signatures at lhe bullom thereof negatives their participation (Azuola v. CA,GR- no: 122880, April 12, 2006). |v. ~The fact thatthe atfestation clause was «writen on-a separate: page has ‘been held: to be a- matter of “minor importance’ and apparently “wil not affect the valiity of the will (Villaflr v. Tobias, G.R. No, 27440, December 24, 1927) ‘Ah altestation ‘clause is mandatory for Alested wis. Ibis separate'and distinct Aor, the ‘acknowledgment: clause (Gortifcation of acknowledgment Fanon ‘canhot be merged (Echavez vi Dozen Gonsinuction, GR. No. §§/192916 October 17,2070) “Absence of this clause ‘will render the will 2 .nulity (JURADO, Succession, supra at 74). =" Effects of Defects. or Imperfections in the Attestation Clause General Rule: The wil shall be invalidated if the defect of the attestation clause is substantial in character. The defect is substantial when it 8: Goes into: the very essence of the clause itself, oF, : b... Consists in the omigsion of one, some; oral of the essential facts-which must be stated in such clause, and such omission cannot be cured by an examination of tre wil itself (Id. at 76). Exception: Doctrine of Liberal interpretation Omissions or non-compliance. with statutory = provisions as to form would not be fatal provided that it can bé established or deduced from an examination of the. will itself that all: of the statutory requirements have been complied with (ld. at 83-84). 2010 SAN BEDA LAW CENTRALIZED BAYOPERATIONS | 269SUCCESSION “SAN BEDA LAW CENTRALIZED BA OPERATIONS Roquisites to avail of the Doctrine of Liberal Interpretation: a. Defects and imperfections: must be in the form of the attestation of in the language tised therein (CIVIL. CODE, Art. 809); “There must be-no bad faith, forgery, fraud: or undue and. improper pressure and influsnca, inthe execution of the atlestation Clause (GIVIL CODE, Art, 809}: and Ik must be ofoved that the will was in fact executed and attested in substantial Compliance with all the requirements of At £05 (JURADO, Succession, supra at 78). Ivmay thus be stated that the rule, as it row stands, is that omissions which can be supplied by an examination of the will itself, without the ‘need of resorting to extrinsic evidence, will. not be fatatand, correspondingly, would not obstruct the allowance to probate of the. will being: assailed, However, those’ omissions which | ‘cannot be supplied, except by evidence aljunde, ‘would result in the invalidation of the attestation clause and ultimately, of the will itself-(Caneda vi CA, GR. No, 10584: May 2852909) ‘The sue-must be Bite dperdg the defects that can be supplied by an examination of the will itself: Whether all the’ padée-ahe’ eanncilvay numbered; pn Whether the signature appeafin|each every page; whéthey the ‘eubsoribing wnesses are three:'ahd ” IN Whether the wil was noiatized (Canoga. | CAG. No, 109564, May 28) 1998):/ b, INL these are facts that he wican rove ni defects oF even omissions concerning: Sena rte saree mentee But the {otal number of pages, and whe. al persons required to sin did so in tho presence of each other must substantially ppear inthe attestation clause, being the only check against porjury in tho probate proceedings (Cavfeda v CA;G.R. No, 103554, May 28, 1993). When the altestation-clause erroneously states the number of pages of the wil, the Court held What. the error was not “material: since” the Pagination in leiters was a sufficient safeguard of-the wills integrity (Celada v. Avena, G.R. No. 145545, June 30, 2008). Notarial Acknowledgment Done before a notary public by the testator and.” the instrumental witnesses. (CIVIL CODE, Art. 806). 270 | 2019 SAN'BEDA LAW CENTRALIZED BAR OPERATIONS teMORYAD 2019 ‘Acknowledgment is the act of one who has executed a deed: in going before some ‘competent officer or court and dectaring it to be his ‘act or deed. “It involves an extra step tndertaken whereby the signatory” actually declafes to the notary public that the same is his or her own free act and deed (Lee v. Tambago, ‘A.C. No. 5281, February 12, 2008). ‘The acknowledgment in a notarial wil has a two- told purpose: a, To safeguard the testators wishes long after his demise; and ‘To assure that his estate is administered in the manner. that he intends it to be done (Lee v. Tambago, A.C, No. 6281, February 12, 2008). b, ‘Annotatial wil that is net acknowledged before a rnotary:public by the testator and the witnesses. ‘fatally defective, even if itis subscribed and 'swarit to before the notary public (Azuela v. CA, GIR. No, 122880, Apa 12, 2006). “Thesnotafy® Bublé before whom’ the ‘wil was > eknowiedged sannot bo coneidared a the thied insifumental)~ witness since he cannot aackriowdedge: Before himself his having signed the-ill (Caiz'v. Villasor, G.R: No, L-32213, November 26; 919. The! notary publlé: must be duly eunimissioned {or the:Jocalty where the acknowledgments. rad: Otherwse, the notarization ~ and the will Lyi. bes void. “Ari acknowledgement taken Oulside. the “terstorial limits of the officer's: fisdiction is void as'if the person taking it were \\Davhollf without official character (Guerrero v. Bhi, No. 17414, Apa 7, 2007 {The Gi Code doos not reauire thatthe siaring ofthe testator, witnesses and notary should-be ‘accomplished. in one single act. (Javellana v. Ledesma, G.R. No: L-7179, June 30, 1955). Afixing of documentary stamp is not required for validity (Gabucan v. Manta, G.R. No, L-51546, January 28, 1980). Additional Pointers on Formali Ordinary Will 4. Date of Will NOT an essential part (3. TOLENTINO, supra-at 100): ieS of Notarial or Reason: It would stil be ‘dated in its notarial ‘acknowledgment. Conflict between the dates appearing on the will does not invalidate the document because the law does not even require that a notarial will beSUCCESSION ‘SAN BEDA LAW CENTRALIZD BAR OPERATIONS ~ MEMORY AID 019 execiited and acknowledged on the same ‘accasion (Ortega v. Valmonte, G.R. No. 157451, December 16, 2005). Agaitionat kequirements for Special Cases a. Deaf or Deat-Mute Testator ir Personal reading ofthe wil, if able to do iif not possible, designation-of two (2) persons 0. read he wil aid Communicate to him, in some pradticable manner, the contents thereof (CIVIL. CODE, Art. 807), In'a case where the testator did not read the final. draft of the will, but the. lawyer: who. drafted the document read the same aloud in the presence'of the testator, three (3) _ witnesses, and notary public, the Court held that the formal Imperfections: should. be. brushed aside when the spirit behind the law/ was ‘served: though the letter was not : (Alvarado. v.. Gaviola, G.R. No. 74695, ‘September 14, 1993): b. Blind Testator Double-reading requirement: i First, by one of the) “subsorbing” witnesses; and — iL: Second, by: the rot whom the wl is deknowiedged (CIV CODE; Art 808). * . » Note: Art. 808 of the Civil Codepriies not only to blind testators, but also to those wine for one reason or another, are incapable of reading thei wills (Alvarado v. Gaviola, G.R! No. 74695," September 14, 1993) a Witness to Notarial Wills - Requi (D-CRABS) a, Any person of Sound mind and. b. Atthe Age of eighteen (18) years or more; ©.” Not Blind, deaf or dumb; 4G. . Able fo Read and write, may ve’ witness to thé execution of a will mentioned in Article 805 of the Civil Code (CIVIL CODE, Art 820). ce. Domiciled in the-Phitippines; and Has not been Gonvictet by final judgment of falsification of a document, perjury. or false testimony (CIVIL CODE, Art: 821) Note: A witness need not know the contents of tho wil, and need not be’shown to have had a {good standing in the community where he lives (JURADO, Succession, supra at 110). Interested Witness ‘A person attesting the: execution of a will to whom or t6 whose spouse, parent,.or child, & devise or legacy is given (CIVIL CODE, Art.823) Effects of being an interested Witness: a, He shell be admitted as a witness; but h Tha devise or legacy. so far only as ‘concems him, his spouse, parent or child, or ‘any one claiming under any of thom, shall be: void, unless. there are. three: other ‘competent witnesses, to such will (CIVIL CODE, Art 823) Note: ‘The persons named in Art. 823 are incapacitated to inherit but not incapacitated:as witnesses (3 PARAS, supra al 130). Credible Witness It means. competent, witness, that is. such person as are not legally disqualified from testifying in courts of justice by reason of mental incapacity, interest, or. the commission of = crimes, or other causes excluding them from tosliving | generally. (URANO, - Succession ‘supra at 117), Creditor Witness. ‘A moré charge on the estate of the testator for ‘the payment of debts due at the time of the ‘rorhbeingy competent witnesses to, his will (CIVIL CODE, Art. 624). a Bb capers fesah sae ot ot ne costa Note: A person-who is qualified to make a willis not necessarily qualified to be a witness to the ~ Wwilkof another (JURADO, Succession, supra at Effect of Subsequent Incompetency IF the witnesses attesting the execution of a will ‘are competent at the-time of attesting, their becoming subsequently incompetent shall not prevent-the allowance of the will (CIVIL CODE, Att: 822), ~The competency of a witness to'a willis to be determined as of the time of the execution of the instrument, and not as of the time when the will is presented for probate (JURADO, Succession, Supra at 113): HOLOGRAPHIC Will issubjeud aio lle for and may be made in or ‘out of the Philippines, and need not bé witnessed (CIVIL CODE, Art 810) The Doctrines of Liberal interpretation - and ~ Substantial Compliarice, as applied to ordinary or notarial wills, cannot be applied to holographic wils (JURADO, Sucvession, Supra al 24). 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 271Reason: The law exacis literal compliance with the requirements of Article 810 (/d.) Purposes of Strict Compliance: 1. Safequard the authenticity of the will, and 2. Deter. or prevent any possible insertion or Interpolation by othore or any possible forgory (id): Formalities: (WDSL) 1. Entirely Written by the Hand of the Testator; Effects of Insertions or Interpotations by Third Persons (3 TOLENTINO, supra at 111-112): a. If "made after the execution ‘of ‘the will without the consent of the testator: insertion |e considered'as not writtan (Id. at 95). Reason: The valiity of the will cannot be defeated by tho malice or caprica of third persons. | b. lf made after the execution/6t the wil ith ‘thé consent ofthe testator the will remains valid but the insertion iseid! ._ If made after the exceution ofthe wil, ané the insertion is validafed bythe testator by hi signature thereon, th wis Vo Reason: The incerlion becomes pert of he ‘will; thus, the will becomes: Yoid\ for non- compliance with the’ reavirement that must: { pevenitety writen (OY ha hare the | testator, \ NE | 4. If rhade. contemporaneous to the execution ‘of the wil, the willis void. \" -- 7, 69 Reason: Wiis nat enrelyvniten By AA ~ hand of he testator IME 2. Entirely Dated by the Hand of the Testator; Date ~ ihe “date™in arholographié will should include the day, month, and year ofits execution (Roxas v. De: Jesus, Urs -G.R. No, 138398, January 28, 1986). This is an essential part of a holographic val Roagon: So that in case ota revision of tha wil, that of the lator ‘dato should be: preferrod ‘as: ‘expresding truly tho last will and testament (3 PARAS, supra at.410) Note: Failure or error to. state: the, place of execution will not: invalidate. the’ will (3 TOLENTINO, supra at 101): 272 | 2019 SAN DCDA LAW CCNTRALIZCD DAR OPCRATIONS SUCCESSION \2Hony aio 2019 ‘When theres no appearance of fraud, bad faith, Uuidue influence and. pressure, “and the authenticity of the willis established, and the only issue is whether or not the date “FEB. 1961" appearriaon the.wil is a valid-compliance with ‘Ant 810, probate of the holographic will should bo ‘alloviod under tho prineiplo of cubctantial compliance (In-the matter of Intestate Estate of ‘Angres de Jesus and Bibiana Roxas de Jesus, GR. No. L-38338, January 28, 1985). The law does’ not specify a particular location ‘where the date should be placed in the will. The only requirements are that the date be in the will itself and, executed in the hand of the testator (Labradorv, CA, G.R. No: 83843; April 5, 1990). Entirely Signed by the Hand of the Testator; General Rule: Art. 810 does NOT require that thBetestator. must. sign the wil with his full signature: Maythe LeStator sign by means of a thumbprint? ~=-Thevarticle does nat seem to permit this as it requires thatit'should be entirely written, dated ‘and ‘signed by thoyhand of the testator himself” SS “fest (GALANE, Suctestion, ‘supra at 138). Exegption:| "In dase of ny inseton, lation, "erasure or alteration in «a hoogephe wil the testator must authenticate the/saine 6y°H FULL SIGNATURE (CIML CE 14). Anais mips obseries -ourestons, an intrieatons made by: voloraphe wl hes no been roles ‘der is signature, the ile not thereby adaled 28 whole, buL at. most ony #5 eee ‘ihe particular words erased; corrected, or interlined (Kalaw.v.:Relova, G.R. No. L- 40207, September 28, 1984). However, when’as:in’this, case, the holographic Wilkins ‘dispute ~had only: one. substantial pfovision, which was altered by substituting the original heir with anther, but which’ alteration aid rit carry the requisite of full authentication by. the full signature of the’testator the effect ‘must be'that the entire Willis voided or revoked for the simple reagon that nothing romaine in the Will after that which could remain valid. To state {hat the: Wil as first wniten “should besgiven fffiqnay is tadieregard the seeming change af ‘mindof the testatrix. But that change of mind can nélther-be given effect because she: felled to authenticate it in the manner required by law by affixing her fll signature (Kalaw v. Relova, G.R. ‘No. L-40207, September 28, 1964)a SUCCESSION ‘SAN BEDA LAW CENTRAL ZED 64 OPERATION 4. Executed in a Language or Dialect known to the Testator. There: is. no. statutory requirement that the testator’s knowledge or understanding of the lenguage or dialect in which the will is exccuted should be expressed either in the body of the will itself or in the attestation clause. Consequently, itis a-matter that may be established by proof aliunde (JURADO, Succession, supra at 53). But where a willis drawn up in the dialect of a certain locality and it is established that the testator was living’ in or was a resident of that locality, here-arises a presumption that the will is drawn upin a language ordialect known tothe. testator, in the absence of evidence’ to the contrary (Id). ~« Case of Subsequent Dispositions: last ~ disposition has" a signature]. and date, whatever belthe time of por dispositions This gives rise tothe] aseayminton that all [Several dispositions were! not signed. and not dated, last disposition valid _ |presumplion that all mada Simularieously (CIVIL CODE,. Art |813). and dale, Several Void dispositions were not signed but dated, and the last disposition has a. signature The presence of the [date renders the will jvoid.. on separate jdates. and .not in its ‘entirety. Only the last disposition is valid and date. The last] Void |The disposition does disposition is]. not affect the validity signed...but not fof. the... other| dated. dispositions or the wil tse Several Valid. _ |The date on the iast| dispositions were disposition validates, signed but not] the dispositions |. dated, and ‘the| receding it, THe dspostons tere) mode <. [Simatanepudly. (CIVIL, PR Ay ine gispesitions were (PARAS, supra of 178-178). =) ORY AD 2019 Additional Pointers on Holographic Will 1. Probate of Holographic Will (CIVIL CODE, alt. 811) General: Rule: The’ original of the. holographic. ‘will hould be presented to the probate:court for visual examination. The law, considering the Special nature of holégraphic wills as well as the Special requirements for their probate, regards the document itself as material proof of authenticity (JURADO, Succossion, supra at 98). Exception: A photostatic or xerox copy of a lost or destroyed holographic will may be’ admitted. Tha authenticity of- the handwriting of: the deceased can be determined by.the probate ‘court, as ‘comparison can be made with the ‘standard ‘writings of the testator (Gan v. Yap, GR. No: L-12190, August 30, 1968; Rodelas v. Aranza, &R No |-SAKO9, December 7, 1982). 2. Witnesses ‘a, If uncontested, it shall be necessary that at least one (1) witness’ who knows. the ina, and. signature of the, testator jexplelly declare‘that the will and signature are in the handing ofthe testator. b. If Contested, at. least three @)' of such witnesses shall be tequired cc. Inthe absence’ of anv competent witness, and i the court deems itnecessary, expert ~»Aestimony,may.be resorted to (CIVIL CODE, Can 31) Note: In one case, the Supreme’ Court held that Sine provisions of At: 817 are mandatory. TMus, ‘io: production of three, itnesses, in case the “will i contested, cannot be dispensed with, (eodoy Caton, GRE Mes 12308 Agu 12, 1999). “Meanwhile, In: the-case of Rivera v. IAC, the ‘Supreme Court ruled that the opposition ‘was filed by a mere stranger who had no personality 10 éontest the wills. Thus, his opposition thereto ‘did hot have tie legal effect of requiting the three witnesses: (Riverd v. IAC, GR: No. 75005; February 15, 1990). Matters to be Proved by the Testimony of the Witness 1. He knows the handwning and signature ofthe testator: 2. The wills in the handwriting of the testator; and. 3, The signature isin the handwriting of the testator (CIVIL CODE, Art. 811), ~ Doctrine of Processual Presumption Ifthe foreign law is not properly pleaded or-proved, > our Courts will presume that the foreign law is the 2018 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 273,SUCCESSION ‘SHNLBEDA LAW CENTZED BAR OPERATIONS - MEMORY AD 2019 5S SEES samé'as our local or domestic law (De! Socorro v. It always refers to the original wil. If there is entirely Wisem, G.R: No. 193707, December 10, 2014). 1no reference at all, then itis considefed as the new will. Ifthe later instrument ‘makes dispositions independent of those in the original. wil, without explaining or modifying such original wil, then itis a Joint Wills Asingle testamentary instrument which contains the wills Of-twy oF mure persuns, juinlly executed by new will, not-2 codicil. A codicil is always related 10 them, either for their reciprocal benefit or for the ‘some prior will (3 TOLENTINO, supra at 126). benefit of a third person (JURADO, Succession, ‘supra at 106) Is execution has the effect of republishing the willas Two or'mare persons cannot mace a will jointly, or in patel (GIVE RODE EE the same instrument, either, for their reciprocal Pen rake eeekt OCG id teen OAR In order fo operate as a republication of the wil, itis, sufficient if the codicil refers to the wil in such away CODE Mt BtBh a to leave no doubt as to the identity of that ines: ' : instrument (JURADO, Succession, supra at 118). 4. Mutual Wills — Executed pursuant to “an SES Heat geben Es Ske nian To be effective, it should follow the formalities of a s i’ - tarial or holographic will (CIVIL CODE, Art. 626). dispose of their property in a paiticular manner, nol rt : frtose otcoatit the oie proves, I bari ach n consideration of the ait (UURADO, i soregsion oft, eslalors-wll (2 PARAS, 2. Reciprocal Wills’ ~ The jestators naiexeach | ROR ati 32) ‘other as. beneficiaries” under, Similar testamentary plans (Id) Note! A/notaial and a holographic will may. be revoked by either notarial or holographic codicil (I ‘Mutual oF reciprocal wils/are NOW prohibiied af 193), Avalid wil tan never be revoked, expressly provided they are contained in.Seéparate instrument: piety by-an invalid out (Hh), The prohibition under Art. 818 is theyexecution of a . joint will or a wall contained in the SAME instrument, _____), Codieilv. Subsequent wilt either for reciprocal benefit forthe benef ofa third 7 person (I) | 2 Reasons (9 PARAS suai feth ‘A wills a purely personal arid unilateral ac. | a ‘Anew or séparate wil 2. Conary othe ovoeabla catattor a gil 3. May expose the testator to undue ifuence, Sad ; TRS ‘may even-induce one of the isla to kil tle” ae other. \ ‘SOC TEyifSuppleménts Makes dispositions \, — ‘riginal wile explaining, | without reference to and ‘This prohibition is applicable oni). iné jeint> wills=—~=|adding \to,” or altering| independent ~of the executed by Filpins in foreign country doesnot \ _fariyofts dispositions. | original i apply to join wis executed by atens (CIviecoDE, | Aa 819). 7S ee Roe If it provides for’ @ ful revoke... entirely» the| disposition - of "the prior wil. teilator’s. estate it may. revoke the whole prior will by Substituting a new and last disposition ‘for Joint wills executed by Filipinos in a foreign country shall not be'valid in the Philippines, even. though , aullioized by Une laws of Ue countty. where, they may have been executed (CIVIL CODE, Art. 819). : the same. Copici ann INCORPORATION ERS pe eee A= will and codiell A priot wil and’ a me thereto being regarded| subsequent will, being Gouicil 28-a single instrument, | two separate wills; may A supplement or addition to a will, made after the fare to be. construcd| be construed execution of a will and annexed to be taken as part together. independently’ of- each thereof, by which any disposition made in the original other. sa ecla, fo br ee As COO, \seTEON, Socsenchey sonieaT Ta 274 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONSSUCCESSION SAN EDA LAW CENTRALIZED BAR OPERATIONS ~ MEMORY AD 2019 Incorporation by Reference 2. If a holographic will (with NO witnesses) refers Where a will, executed as required by the Civil Code, toadocument entirely written, dated, and signed Incorporates into itself by reference any document or in the handvaiting of the testator, there can also paper (CIVIL CODE, Art. 827). be a proper incorporation by reference. (3 : PARAS, supra at 135) Requisites fora Valid Incorporation by Referance: (EDIS or SIDE) “The dooumont or paper roferred to in the wil must be in Existence at he time ofthe execution REVOCATION OF WILLS AND of the wil 2. The will must clearly Describe and identity the samé, staling among other things the number of pages thereof; 3. Itmust be Identified by clear and satisfactory proof as the document or paper referred to therein; and 4. Iemust be. Signed by the testator ‘and the witnasses on each and every page, except in case of. voluminous books. of account or inventories (CIVIL CODE, Art. 827). TTESTAMENTARY DISPOSITION Revocation Itis an act of the mind, terminating the potential ‘capacity of the will to operate at the death of the testator, manifested by some outward or visible act fr sign, symbolic thereof (JURADO, Succession, ‘supra at 116). ‘A.will may be revoked by the testator at any time before his death. Any waiver or restriction of this fight is void (CIVIL CODE, Art. 828). Note: The’ éxception in the fourth requisite refers , ‘only to the sianina of all paces; while not every page has tobe signed, there must be a signature on at least several pages (3 PARAS, supra at 134), Nature and/Effect of Revoéation ‘Upon ravscation, the wil or testamentary disposition | intended to /be' revoked ceases to exist and i This adisle can refer only to such dgéiments abn inoperative as ‘if it has never been written. A will inventories; books of accounts, document of tite being a upiialeral disposition of property, acquires and papers of similar nature; the documentishoule, binding force only at the death of the testator, it under ‘no circumstances, - make “testamentary. | \ follows that flo present rights are conferred at the Glaposttons, for then the fora requisites for wilsS |) time ef iig_execulion, and no. tle vests In the would be circumvented (BALANE, Suecession, | beneficiary Guring the life of the testator (JURADO, Succession, supra at 117) supra at 183). ; B ‘When, in a will, reference is made toan inventory of the properties of the testator, which has,thus been _ made part of the will, and the will has an attestation clause that moots the requirements of the law, no BR attostation clause Is necessary for te sait/Tuventory anymore (Unson v. Abella, G.R. No. 17857, June 12, 1922). »Rules for Revocatior “1. IPfevocation. made in the Philippines — follow Philippine Law If revocation made outside the Philippines a. If testator is not domiciled in the Philippines: i.” Follow the law of the place where the will was made or ji. Follow the law of the place where the testator was domiciled at the time of the revocation (Aft. 829 of tie Civil Cove). b. Iftestator domiciled in the Philippines (This situation is not governed by Art. 829) i. . Follow Philippine lavy; or ii, Follow the law of the place of revocation (AiL17 of the Civil Code) Follow the law of the-place where the will was made (by analogy with the rules ‘on revocation where the testator is a non-Philippine domiciliary) (BALANE, Succession, supra at 184). Provisions which are in the riature of testamentary dispositions must be contained in the will toot Parole evidence may be admitted to prove the identity of the document as incorporated (3 TOLENTINO, supra at 127). From the fact that Art. 827 (4) of.the Civil Code speaks of “witnesses,” itis reasonable to believe that as a rule, only notarial wills can have this incorporation by reference. However, it is submitted that 4. If a holographic will’ happens to-have at least three credible and qualified witnesses, there can bbe a proper incorporation by reference; or 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 275‘Sf BDA LAW CENTRALIZED BAR OPERATIONS Modes of Revocation: (ISD) 4. By Implication of Law (CIVIL CODE, Art. 830) (PUJ-BALA) The kind of revocation produced by operation of law when certain acts or events take'placs after will has been made, rendering void or useless either the whole ‘will or certain, testamentary Aispostons herein (3 PARAS, supra at 120) Protarition revokes the inatitution of heir (CIVIL CODE, Art: 854); b..Act of Unworthiness by an” her, deviseciletates revokes. testaimentary provisions inshis favor (CIVIL CODE, Art. 1032), . . Judicial action for regovery of debt revokes a legacy of creditremission of. debt (CIVIL CODE, Arts. 935 and 936); 4. “If both spouses of the subsequent marriage ~~ acted in Bad feith, seid marriage shell be Void ab initio’and testamentary dispositions made by one. In favor of the otter are evoked by. operation “of law. (FAMILY: CODE, Art 44); c.. Alienation, . tranaformatia? or leas of bequeathed property revokes. legacy of such propetly (CIVIL GODE)ArL. 93.7), f. When there is a decree of Letal separation (FAMILY CODE, Art 63, Paf. 4); and. Note: In legal Sepafation;a spouse may sii” Inherit from the other spduse, unless fours ‘uilly of the” legal. grourids . of legal Separation (FAMILY CODE; Art 85 Per. 4) 9. Annulled or void ab initio matriages.tevake lay Testaiientary. dispositigns mieue. by” spouse in favor of the other (FAMILY CODE, 7 Ar50). Je 2. By Subsequent Instrument (CiVit CODE, At 830) Requisites for, @ Valid Revocation by a Subeoquont.\Inctrumont. (OE | LEON, ‘Succession; supra at 184-185): (FEC) ~ a [he :subseduent, instrument must comply ‘withthe Formal requirements ofa wil Molo 90.Phil 37 ‘iting Samson v. ‘41 Phil. 838) , Tho tostaor‘ must posséss' testamentary Gapacity; and c. The, subsequent inslrument “must either conlain an Express revocatory clause or be incompatible’ with: the. prior will (CIVIL ‘CODE; Art:831). ¢ i, Express - when ttiere is a.revocatory cause expressly revoking the provous will ora part thoraot It may be effected by 276 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS, SUCCESSION IEHORY AID 2019 41.) ‘Subsequent will 2) Codie If the revocation is’ partial, it will have the effect of republishing the will as of the date of the codicil yath respect to all parts not revoked. If the revocation is total, there is'no republication (WURADO, Succession, supra at 121). 3.) Non-testamentary writing executed ‘asin case of wills ~ does nat contain ‘an’ affirmative deposition. of the Property, thus ‘it cannot impliedly revoke 2 will as it cannot be said to be inconsistent with the dispositions Contained in the wal (ct). In all of the three ways’ of express revocation, the revocatory clause must clearly -and- unmistakably vmanifest the intention ofthe testator *to,revole the previous wil (I. JO ievoke @ previous will, it is hhecessaty thal. the subsequent instrument be valid-and executed \wilh-tha formalities required for the making) of -wils. (3 TOLENTINO, ‘Supra at 131). ’ ‘Atv) loss or destruction was unauthorized (Gan il, But where the maker ofthe wil thew tu will But where the maker ewitupon " v. Yep, G.R. No, -12190, August 30, 1958), the-fire with the interit to revoke, and it er unless a copy survives. burned through in- three places, this. was considered a: revocation, although ‘the! writing remained intact, and although it was rescued ‘and: preserved without-the knowledge of the testator (3 TOLENTINO, supra at 135) Ratification of an unauthorized: destiuction is however permissible, provided sufficient proof of this is presented (3 PARAS, supra at 140) Note:, If bumed,- tom, ‘cancelled, | or) ‘Tearing Coiterated by some other person, without) “A-slight act of tearing is generaly held sufficient; {he express direction of the fostalor, he wil __—-epvalnough,he greater the degree of tearing tho Tetronger if tho presumption that the insiniment may. stil be, established,. and .the estate was torn) with animus. revocandi (JURADO, distributed. in. accordance -»therewith, provided tho. folowing. arefiéstablshedife: | Succession, supra at 126), (CDF) (3. TOLENTINO, supra ab 138). f Contents Legge matte cowste scr i. Duc execution; andi LL Gthefiniss tno testator dosisis voluntary or ji. Fact of uniauthorized,destriletion.. B throtigh ‘the persuasion of others before'the act | > ofedestiiction could bo consummated, the act of b. Testamentary “capacity at “lies time ot / revocation has’ not also been consummated Derforming: the ‘act of desiruéion (ld. at Hence, it produces no effect a) 33, & Intentto revoke (animus revocana “rearing of even the signature aloné:constitutes oe revocailon, provided the-olher requisites are ‘The nfo to fevoke st appear leary present. This is because the signature-goos to, ad, unequivocally, An act of desituction the very heart ofthe wil (2.PARAS, supra at which is done accidentally, by mistake, ras 142), i 7 3 resul of fraud, undue influence, does not s opefate, as. a. revocation (JURADO, Humpty Dumpty Rule Sticcastion, supra at 123) ane tae rer a evden longer be revived by putting the pieces together ‘The intention to’revoke must concur with an (Fier G6-Co. v.;Pouloa, 642 So..2d 377). ‘overt act, manifesting the intention. Neither «= sae destruction without intention ‘nor intenticn Note: ilenton (eat 120). revocalion: is: partial ifit is directed. against a nonessential part ofthe will and total if itis Uncut ays at essential yal thee (of 728). 2 Note: Where the ac of destruction is confiected with the making of another wil $0 ag to fay raise the inference thatthe testator meant the revocation of Tfield to" depend upon the eficacy nf the now Fispostonintended tobe subaiuted, the revocation Ini ig ej tlpel i depennlert open is ffeacy ‘ofthe. pel clspsr and if for any reason, the new. will intended. tobe made asa. subsite. is inoperative, the reyecation fais and the original wil remain flores (Vda. De Molo v. Molo, GIR. No C2090, Soe 2 1801. istration: X, the testator, asked fis friphd Y to-get his will and bum it for him: ¥ then burned: Ure vill in aeseparate tun cid selene! wilh, only the ashes. Is there a valid revocation? _ TAL | tt was ‘not done in the preserice of the testator as. 3. 98 P provided for by Ale, 090(9Yf the Citi Code, Reyocatlon by Mistake ff \ |) A asrevocdtion.of & will based on a false. cause or an Doctrine of Presumed Royocation 4 "legal case is nll and yoid (CIVIL CODE, Art. 833). tn the absence of other! evidence: Cit (shall be presumed that the: testator \ destroyed the wil with: | The idoaoy eget callse must appear upon the face. ‘eninus revecandl: ON 4,” Where the will cannot be found follow death of the testator and ibis shown that in the testator's posséssion when ae ay ert wil Taig woowlseee. or eestor Smmust have} oy the truth of the facts alleged by testator nad ready access to anda. Mares 3. Whereitis shown thatthe will was in he iid VALS of the. testator’ after. its exeoution. and =" Stoeementhr teat found oncra ie esiiors: Note: The recognition of ett Hleylliate Ub does effects after Ho death in such stats of mutilation, notlose its lezal effect, even though the will wherein Cancellation or obliteration. as. represents. a it yesimade sifult be revoket (EMEEODE, Ai sufficient act of revocation witnin the meaning of a MiMlerA He Soe ae the applicable statute (Id..at 128-129)... Hell cal Hlustration: X instituted Y; his friend, as helt forthe tree portion of his estate: X then revoxed the wil. May Y subsequently contest the wil? “1 revoke the wil for Y" “trevoke tho will for Y a6 ho ie already dead” "revoke the'will for Y bécause we are not ‘mends’anymore" ‘Tho .cfficaoy of the revocatory clause. dose: not depend on the testamentary dispositions .of the revoking. will, unless. the testaior ‘so provides. Revocation is, «aenerally. speaking, an absolute provision, indépendent. of. the” acceptance - or ‘opacity of the now hire, (BALANE, Sucocedion, ‘Supra'at 193-194), Answer: Yes, but only in 6 far 2s réason “Bor for Example: X executes a willy-naming A: as- his thie reason that he is dead) for being untrua. in such universal heir. Two years later, X executes a second cease, the revocation is null and void, and wil not take will revoking the first and naming B as his-universal effect 278 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONSSUCCESSION SAL BEDA LAW CENTRALIZED BAR OPERATIONS ~ MEMORY AD 2019 REPUBLICATION AND REVIVAL OF WILLS Republication isan act of the testator whereby he reproduces in a eubsoquent will the digpositions contained in = previous will which is void as to its form or executes A codicil to hits. will (JURADO, Succession, supre at 132), Kinds: 1. Express or Republication by Re-execution (CIVIE CODE, Art. 835) — if the testator Teproduaes ina subsequent will dispositions Conlained in a previous one which is void as to its forin, The purpose of-republication is to cure the will ofits formal defects. 2. Constructive or Republication by Reference (CIVIL. CODE, Ait: 830) — ithe testator for some reason oF another executes a codicil to his wi Note: Ait. 836 must be considered as the general rule and Art. 835 as the exception. Reproduction i the voici fs req) void as to its form; in all other cases, reference tothe riginal will suffice to republish it through the codici Thus, a codicil: may republish and validate a, wil which wias originally void for want of testamentary Gapauity ui un account of undussinfluencs upah the, testator (3 TOLENTINO, supra alit44) lMustration: X made a will in 4985/bUt{ only 9 witnesses were present, In 1995, heinoded the wal by a codicil. Ifhe dies, should the wil be og a? ‘Answer: No, The 1985 will was void 88 to iG because it only has two witnesses and therefor £835 should apply. The testator must reproduce in a Subsequent will the diapositiona contained in tho 41985 will. He cannot merely use a codicl Note: The.word “form” in Art..837 refers. to those covered by Art, 805 like’ defect in the number of snitnesses, lack of or fatal dofeot in the attcetation, lack of acknowledgement etc., but not to vitiated consent or to lack ‘of-testamentary capacity (3 PARAS, supra at 152). Effects of Republication by Virtue of a Codicil: 1. Codicil revives: the previous will (DE LEON, ‘Succession, supra at 197); and. ~ 2. ‘The old will is ropublished as of the date of the codicil, and makes it effective; as it were, from the new and later date (8 PARAS, eupra at 210). 3. Awill republished by @ codicil is govemed by a statute enacted subsequent to the execution of the wil, but which was operative when the codicil ‘was executed (Id. cl only when the orginal sil is Revival Restoration to validity of a previously revoked will by operation of law (JURADO, Succession, supra at 133), Republication v. Revival a Takesplace by anactot| Takes place the testator operation of aw Corrects. extrinsic and intrinsic defects. (id. at 133). Restores a revoked will Examples of Revival 4, While omission’ of a compulsory heir in. the institution of heirs annuls the institution, ie, omitted heir- dies. ahead--of the. testator, the p institution) is revived, without prejudice to the ghitOl fepresentation (CIVIL CODE, Art. 54). 2: falter faking” a’ will, the testator makes a seconds will ily revoking the first;. the revocation ofthe second will revives the fist will a bot x ‘Art. 837 (3 PARAS, supra at Expross Revocation of the First Will ifafter making wil, tho testator makes a ‘Seguin will expressly revoking the frst, the Tovcalion of the secand wil does not revive the frst wil, which can’be revived only by another will or codicil (CIVIL CODE, Art. 837). 22° Imniplied Revocation of tie First Will. Where there is merely an inconsistency betweén ‘wo wills, but there is no revocatory clause, upon destruction of the second will, the “first is automatically revived, regardless. of «the Hileniloirof the (estate, provided thet the first «will has been preserved undestroyed (JURADO, Succession, supra at 133). Illustration: Suppose, however, that instead of ‘uh express revocatory clause, the dispositions found in the second will- are. merely INCONSISTENT with those found in the first — shall the express revocation of the second will by a third will or a codicit-resutt in the revival of Ue rst wil? ‘Answer: The- Code does not provide for the ‘effect of the revacaticn of the second willn case the second will merely impliedly revoked the fist will (1). ‘2OIS-SAN BEDA LAW CENTRALIZED BAR OPERATIONS |. 279Note: If the revoking will be disallowed because it is not. valid, it, cannot produce the effect of annulling the previous will (Samson v. Naval; GR. No. 11823; February 11, 1918). Principle of Instanter When there ig an exnrass revocation of tha first wil by the second will, the third will cannot revive the first wil Express. revocation is always. final, and executory. The revoking clause inthe Second will is not testamentary in charatter, but operates: to ‘revoke the prior will upon the exécuition of the will containing i hence, the revocation of the second will does not revive the first Wil which has. already become a ‘lity (3 TOLENTINO. supra at 144-145). ALLOWANCE AND. DISALLOWANCE OF WILLS Probate AA Special proceeting mandatbriy e procedure fo be followed is that which is provided for Inthe Now Rules of Cour! WURADO, supra of 12 138), Note: Probate is. one things tha vl ofthe. testamentary provision is arthée\ the tsk aecides the execution of ho docurient andthe tostamonary capacity. of the testafor; thé. second deals’ with, descent-and distribution (Sumilang v. ‘Ramagosa, GR.No. 129135, Docombor 20,1907). 0 )) When Probate is Commenced (i 4. Ante Mortem; during the lifetime of the feStator ‘bythe testator himself — Note: Atter‘a will has been probated during the lifetime of the testator, it does nat necessarily ‘mean that he cannot aller or'revoke the.same before:his death (Maioles I. v; De los. Reyes, GR. Nos. 129505 & 133359, Januany.31; 2000). Post Mortem; after the death of the testator'— by any person interested in the estate Note:. Formal, validity is the only, legal. issue in probate-of a will (DE LEON, Succession, supra at 200). Necessity of Probate 1. The law expressly requires it. No wil shal pass either real or personal property. unless. it is proved: and allowed, in accordance with the Rules of Court (CIVIL CODE, Art..298). Event 280 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS SUCCESSION SAN BEDA LAW CENTRALZED On OPERATIONS — MEMORY AD 2010 only one heir has been instituted, there must stil be the judicial order of adjudication (Lopez v. Gonzaga, G.R. No. L-18786, January 31, 1964). Probate is a proceeding in rem and therefore ‘cannot be dispensed with or substituted by any father nraeaeding, judicial ar extrajudicial without offending. public policy (JURADO, Succession, supra al 139) ‘Tho right of a person to dispose of his property by virlue of a will may be rendered nugatory (in the malter-of the Testate Esiate of the late ‘Agustin Del Valle, G.R. No. L-11609, September 24, 1959); and Because, absent legates and devises, or such of them as may have no knowledge of the. il, ouldte cheated of thet inlertanve: thru: the conclusion of some of the heirs who might agree to the. partition of the estate among themselves tothe exclusion of others.(In.the matter of the ‘estate Estate ofthe late Agustin Del Valle, GR: No.L-11609, September 24, 1959) Venu 4. "Resident cilizen or alien — RTC in the province in which heyresides at the. time of his death 2. Non-resident citizen of alien ~ RTC in which his estate is located (RULES OF COURT, Rule. wasabi). ‘Actual 6tphysidal plaéd of abode of ine decbaséd &s ~ distinguished, from his legal résidence or domicile (ule ¥. CA,G-R: 10, -40502, Noveinber 29, 1970). Note:The. firstourt taking cognizance of thé settlement ofthe estate of'a decedent shall sxercise tlor6. the ‘exclusion of all. other. courts Impiescriptibiity of Probate “The statute-of imitations Is not applicable te probate ‘of wil (JURADO, Succession, supra at 137), Rationale: Probate proceedings are not established inthe interest ofthe surviving heirs, but primarily for the protection of the expressed wishes of the testator (1a). Itis true thatthe rights of the parties should.not be left hanging: in. unceriainty for periods in excess of the maximum period-of ten (10) years alowed’ by law bu the remedy is forthe other interested person eitier: 4. To petton forthe production of the will and for its probate (I); 2 To. infict upon’ the gully’ party the penalties proscribed by Rule 75 ofthe Rules of Court); orSUCCESSION SAW BEDA LAW CENTRALIZED BAR OPERATIONS - MEMORY AD 2019, 3. To declare the unworthiness of the heir under ‘Art. 1032 of the Civil. Code, for concealing or suppressing the will (Guevara v. Guevara, G.R. No. L-6408, January 31, 1956). “The will and the codicil may or may not be probated simultaneously. (One whe has or can have no interest in succeeding aldecedent canst oppose the probato of hie alleged will (Butiong v. Surigao Consolidated Mining, G.R. No. L-13938, July 31, 1968). Estoppel not Applicable to Probate Proceedings, ‘The Tule of esoppel Uvex riot apply to, probate proceedings- for-they are’ invested with public interest, and_if estoppels would be applied, the ascertainment of the truth may be blocked (Alsua- Betts, G.R. No. L-46430, July 30, 1979). Effect of Allowance of Will ‘A judgment or decree of a court with jurisdiction to probate a will is 4.- Conclusive as to the validity of the will, Note: Especially the testamentary capacity and ‘due execution of the will (3: PARAS, supra at! 164), 20° Not subject to collateral-attadi but'stands as final, if not modified, set aside, or revoked by a direct proceeding, of reversedon appeal 'o.2 higher court; and’ 3: Conclusive. 10. the whole World! (ULIRADO, Succession, supra'at 142), Note: Formal notice is ‘an idle ceremony wheroithe! adverse party had actual knowledge. 0 Fraud as a ground for’ relief must! betbased on. extrinsic fraud, > Where part of ihe estate is not distributed, recourse isnot to re-open probate proceedings, but motion for ‘execution or action for. reconveyance (Heirs of the Late Jesus Fran. Salas, C.R. No, L:89546, June 25, 1992). Instances When Allowance May Be Set Aside General Rule: Since a proceeding for the probate of wills essentially one in rem, a judgment allowing ‘a.will shall be-conclusive as to its ‘ue execution, (JURADO; Succession, supra at 144): Exceptions: (ARSA) By means of an Appeal (CIVIL CODE, Art. 638 par 4; 2, By means of a peon for Relief from judgrtient by. reason ‘of fraud, accident, mistake, or excusable nedliagnce (RULES OF COURT, Rule 38, Sec. 2); 3, Bymeans ofa petition to Set aside the judgment by reason of lack: of jurisdiction” or: lack of procedural due process; or 4. By means of an action to Annul judginent by reacon of extrinsic or collateral fraud (JURADO, * Succession, supra at 144) Questions Determinable by Probate Court General Rule: In probate proceedings, the probate court cannot inquire inte the intrinsic ~vaidity of testamentary provisions. The only questions that may be determined by the probate court are the following: (ICE) 4. Identity of the will (whether the will presented is tho laet wil ahd tortamont of the testater): 2: Testamentary Capacity of the testator at the timo of the execution of the will; and 3. Due Execution of the will (whether there: was ‘compliance with. the requisites anid'solemnities prescribed by law ((d. at 198 190). Note: The probate or ‘administration court may } decide prima facie the ownership of the property, but such ‘determination -is not final and’ is_ without jielltice to the right of interested parties o vontilato the question of ownership-in a proper attion’(Teng ¥ Ting, G.Rz No. 184237, September 21, 2010) Exception: Practical considerations liv Nuguid v: Nuguid (G.R. No. L-2346,-June 23, 1966); tie Supreme Court held that, if the case was {to bo teinvanded|for probate of the wil, nothing wil be gained. On.the contrary, this iligation would be protracted, And for aught that appears in the record, Ine event of probate or ir tre coutl ejects the will, ‘probability exists that the case will come up once ‘again’ before"us on the same issue of-the intrinsic validity or nulity of the will~ thus resulting to a waste of time, eifort, expense, plus added anxiety. In Nepomuceno v. CA (G.R. Né, L-62952, October 9;'1985), the Court ruled that “the.court:can inquire ‘a6 to the intrinsic validity of the will because there was-an express statement that the beneficiary was mistress, Criminal action will not lie against the forger of a wil, which had been duly admitted to probate by a court ‘of competent jurisdiction (Mercado v. Santos, G.R. No. 45629, September 22, 1938), ‘ The fact. that the ‘will has been allowed without ‘opposition and the order allowing the: same has become final and oxecutory is nota bar to the presentation of a codicil provided it complies vith all the formalities for executing a will - it'is ‘not necessary that the will and codicil be probated fogether as thé codicil may be concealed by an interested party. They may be probated one-after the 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 281fhova SUCCESSION ‘ther (Macam v.Gatmattan, G.R. No. 40445, August 17, 1934). Grounds for Disallowance of a Will: (F*UMIS) 1. Eormalities. required by law have not been Gomplied with; 2. Will was executed through: Force ‘or -under duress, oF the influence of fear, or threa wes procured by Undue and. improper pressure and influence on. the part of the beneficiary or of some other person: 4. Testator acted by Mistake-or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto; 5. Testator: was Insane, or. otherwise mental incapable of making a will, at the. time of its execution; and 8. Signature of the testator was procured by fraud (CIVIL CODE, Art. 839). Note: The list is exclusive (Ajaro v. CA,,G:R. No. 106720 September 15, 1994). Violence — there is violence whert if vonteclaast conseiit, serious or itresistible” force, is: employed ~ upon the testator (CIVIL CODE. Art 1335). reasonable ‘and well-grounded. féaf of an imminent ‘and grave evil tipon bik person 9 property, oF tpn the person or properly of his spouse, destendanis. or ascendant to. exceute te wil (CIV CODE, At 1935). r may either be: 1: A mistake as_to identity aS Ft instrument which he signed; 2. A mistake as. to the contents bhthe ‘wll sel — (URADO, Sucenssion, supra at 158). Fraud ~ if by misrepresentation ani deceplion. Ihe testator led into making a wil different from that he ould have made but forthe inisrepresentation and Soception (id at $57). Undue Influence — when a person takes improper advantags of his power over the. will of another, depriving. the latter of a. reasonable freedom. of choice (CIVIL CODE, Art. 1937). Fair arguments, .persuasion, appeal: to emotions, and, entreaties which, without fraud or deceit or actual coercion, compulsion or. restraint do. not ‘conelitule undue influence. sulficient to invalidate a will (Barreto v. Reyes, G.R. No. L-5830, January 31, 1966). To be sulficient to avoid a will the influence exerted must be of a kind that So overpowers and subjugates the mind of the testator as to destroy his free agency and make him express the will of another rather than his own (Pascual v. De la Cruz, GR. No. L-24819, May 30, 1969). The contention that 2 will was obtained by undue influence or improper pressure cannot be sustained fn mere conjecture. or mere suspicion, as itis not enough that there was an opportunity oF a possibilly to exercise undue influence, or that it might have ~ boen exercised (Pascual v. Be la Cruz, G.R.NO. L= 24819, May 30, 1969). Allegations of fraud and tindue infliénee eannet oo ‘exist because they mutually oppose and exclude ach other that their joining as grounds for opposing probate shows absence of definite evidence against __the validity ofthe will (leasiano v. Icasiano, G.R. No. 118979, Juin 30, 1904) Bhreeaicay ielaionte, Tei eniantr ae cs Given by judicial decree. a enema cence _ presen 5 Mis avay bo or legal VD ye ease ’ Sis ‘Avajs tial except ‘when the ground of fraud or influence for example aifecs'" only. certain partons ofthe wil. Ivotunary ack fhe testator, Mi PMc oes “Take place ‘during the | Disallowance ‘is. usually lifetime of the testator. | invokéd’ ' after . the testator’ death, (DELEON, Succession; supra at 232) Ratification 1, Ratification is not possible — with respect to a will which does. not comply with the formalities prescribed by law (CIVIL CODE, Art. 839 pars. ~ 4-2; JURADO, Succession, supra at 158). This ic bocauco a void will cannot bo raed. 2. Ratification is possible — with respoctto will which -was' “executed through vilerica, intimidation, undue influence, fraud or mistake (CIVIL CODE, Art. 839 pars: 3-6 (I). 282 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONSSUCCESSION SAU BEDA LA CENTRALIZED BAR OPERATIONS MEMORY Ai 2019 INSTITUTION OF HEIRS Institution ‘An act by virlue of which a testator designates in his wil the person or persons who are to succeed him in his properly and transmissible rights and obligations (CIVIL CODE, Art. 840) Note: A child already conceived at the'time of the death of the decedent is capable of succeeding provided it be. born. later under the conditions prescribed in article 41 (CIVIL CODE, Art: 1025, par.2). Fundamental Basis of the Law of Testamentary Succession The doctrine that the will of the testator, freely Gxprescod in hie lect will and tostament, iS, as. general rule, the supreme law which governs. the: succession (JURADO, Succossion, supra at 159), - Order of Preference: (ISRAI) Institution of heir (CIVIL CODE, Avt.810): ‘Substitution of heir (CIVIL CODE, Art, 857); Right of Representation (CIVIL CODE, Art. 970): Right of Accretion (CIVIL CODE, Art, 1018); antl Inlestacy (CIVIL CODE, Art. 960), jequisites for a Valid Institution: a. The will must be extrinsically valid; meaning: ‘The testator must be capacitated: ‘The forrraliies must be observed, ‘There must be no vitiated consent; ) ‘The will must have been duly probated; and The will must have been the personal actof the festator. 2. The insituion’ niust be intrinsically valid, meaning. 4. The legitime must not be Impaired; b. The heir must be certain or ascertainable; and < ie, suitiatite,- ur viubustaliedsy, Atle instituted hers (GIVIL CODE. Art 44) 8. Ifthe:name, surname, and circumstanéos persons (CIVIL CODE, Art: 844); and. 4. IF an unknown ‘or uncertain: person has beer! instituted. (CIVIL CODE, Art. 848). Note: Ifthe doubitaé to who'is instituted cannot be resolved.then itis the same.asif the testator has not expressed his will (3 TOLENTINO, supra it 173). Presumptions on Institution of Heirs: (EIS) 4. Presumption of Equality ~Whon heirs were insttuted:without designation of shares; they are deemed to inherit in equal parts (CIVIL CODE, Ait. 846). Note: This applies only whan all ofthe aie: are of the same class or juridical: condition. The Proper interpretation is Hit: f the testator has no ‘compulsory heirs, apply the provision literally; however, if he has compulsory heirs, first satisfy their legitime, thon apply thera with rant te 204 | C019 SAN DEDALAW CENTRALIZED BAK OPERA IONS 6d oir Z AC aigshivied as an hei EN 1) illustration: sa theve insted Ret are the same ae tnowe saber \ SUCCESSION the disposable free portion - (JURADO, ‘Succession, supra al 165-166). justration: X statedin his will “I give A, 8, ana Cas my heirs, my entire estate,” The net value Of the estate is P120,000. How mucti is each entitled? ‘Answer: A, B, and C shall equally divide the 120,000, “Hence, each shall be enlilled to P40;000. 2.. Presumption: of Individuality ~ When. the lestalor-Insiltutes Some hells: individually and others collectively, those collectively designated shall be"considered as individually instituted, Lunlose itelaatly.apnsare that tha:intantian af the ‘testator was othierwise (CIVIL CODE, Art. 847): _Illustration?.Testator said in his will:*I-hereby ) ygive my entire estate to A and Band the children JofC (Dsand F)" The net value of the estate is £2129,000-Klow much wll each be eniled? “Answer A: Bp , and shal be entitled to - P30,000, each) \ umsliogs (6f \Simuttaneity —-when’ the (the succession’ a person and his hildren,they-are lall deemed: to have been instituted simultarjeously: and not successively VIECONF, Art 49) iste i Pihe refers not io the chien of Stator but.(6 the children of. the person (PARAS, supra at 270). va, my antfo estate to,C Bnd his children, O “and The net value of the estate is.P'120,000. Siisivach leach be ented? “answer: G, 0; and E shal eon got 40,000. Institution of Brothers and Sisters - In case’soine of fll blood and-others of hal-blood! 1. Testate Succession - ° The inheritsriee ‘shall be -distibuted eqUally, unless different. intention: appears (CIVIL CODE, Art 848). 2. Intestate Succession Brothers and sisters of the fl blood shall be tilled a share: double that of the bromers, atid sisters the halfblood (CIVIL CODE: At 1006). ‘ Institution Based on a False Cause (CIVIL. CODE, Art, 850) General Rule: The statement of a false catise for {ho institution of an heir shall be considered as NOT writon,SUCCESSION ‘SW BEDA LAW CENTRALIZED BAR OPERATIONS ~ MEMORY AIO 2019 lusttation: “| hereby institute my student X as my heir for having topped the bar examination of 2003." EX wae not the top notcher, would he etl inherit? Answer: Yes, because the false cause oF reusun is considered as not written. Reason for the law: The roal cause is the testator's liberally, the mention ofthe bar topping being merely incidental, for even i had. X topped the bat, the testator would:not have been bound to reward him, were it not for the provision in the wil. Exception: When it appears’ from the will that the testator would not have made the institution iftre ad known the falsity. of such cause (CIVIL. CODE, Art. £850): Requisites for ‘the Annulment of Institution of Heirs: (SF4) 41.‘ Gauise of institution of the:heirs.must be Stated!” in the wil 2. Cauise must be shovin to be Fela; and testator would not have made the institutior he known the falsily of the cause (Aus! Institution in Aliquot Part 4, -Rule ifthe entire inheritance is fot covered: ‘a. -Testator has-no intenfinn, to.mnake heirs’ as aole heits- mixod sucagssion (CIV CODE Ail. 851), The remainder of 1/5 shell pase Ina. ‘ Gu b. Testator intends to make the heirs as sole, heirs Sach part shall ba ineraashd _ proportionately (CIVIL CODE, Av 852) “itis, terefore, evident hat the rule tad in ‘Ast 852. constitutes an EXCERTION:to the rule stated in the second, paragraph of Art. £854. It énunciates' the principle that when tere is a.confict between the intention. of the. testator’ and. his mathematical: + The. devises and legecies are valid insofar a they are not inofficious (CIVIL CODE, Art: 854, par. 1); 3. “Intestate. succession: ensués (Id; '3 PARAS, ‘supra at 221-222) Where a one-sentence will institutes the petitioner aa the sole, univeraal heir and preterit the parents of the testatrx, and it contains no specific legacies. or bequests, such universal Jnetitution of petitioner, hy ial, i void (Nuguid v: Nuguid, G.R; No, L-2344, June 23, 1966). Note; Omission of the surviving spouse (SS) does ~ constitute preferition, Sis not a compulsory herr jn the rlvect- fine. Therefore, the ohly effect of her ‘omission is a partial annulment of the-institution of hisrs tu the eaten thal her legilime is prejudiced; in other words, SS is sill ented to her legitime (DE ~ LEON, Succession, supra at 250). yearns : ‘always voluntary: The omitted compulsory [it cisinheitance is heir gets his share from | valid, the compulsory tho entire estato, i. not| heir is: merely restored only. his share of theo" his: legitme, and teatime but aso. of tne | testamentary free portiomnet disposed | dispositions” which are. of by way of devises ahd | nofcous are reduced Peeneeccces) Compulsory heir in the | Compulsory’ neir may direct lineis oinilted., | be disinherited though ‘notin the difect line. (DE LEON, Succession, supra af 259). 286 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS .lusteation: A, A and Care the legitimate children of X. When X executed his will, he instituted as heir fo his entire estate A, B and his friend F. He also ‘gave G a legacy of 30T. The value of the net estate is 1207. (a) Is there praterttion? (b) Whats ne effect of preterition on the institution. of heirs? (c) What about the legacy given to G? (d) How will the estate be distributed? Answer: 1. There [s_pretorition “ because C was. not ‘mentioned the will, nor was he given anything. 2., The institution of F will be anrulled. 3. The legacy Given to G is effective because it can be contained within the free portion, In this case, the free portion is (% of 120T) 60T. The legacy given to G in the amount of 30T can be Contained therein, t 4: The estate will be distributed as follows: eu | ia ee Mose | nto J acee| one A 20,000 8 20,000 ¢[- 20,000 fs F inst Total, | 60,000 Illustration: Testator’ has three (3) legitimate’ children, A, 8, and C. In his wil, he provided! “L hereby give 4 of my estate to A; 1/10 to Band % of. ‘my estate my ed The tel value uf ts estate is OT ler pretation () How sbouina estate be distributed? = ‘Answer: 1. There is no preterition because there is stil a portion of the estate from which the:share of C maytbe taken from. © 2. The estate shall be distribated as follows: Under Art. 855. “the share of a child or descendant omitted in will must fist be taken from the part of the estate not disposed of bythe wil, fay; i that is ri ficient rd iin fees be taken proportionallly from the shares’of the other compulsory heirs.” SUCCESSION : ‘SA BEDA LAW/ CENTRALIZED BAR OPERATIONS ~ MEMORY AD 2019 fs Hence: ‘Step 1: Determination of the amount to be roduced. yi Heir | Ceaitime: > A 20,000 30,000 B 20,000 = 20,000 c 20,000 = 120,000 Fo 0,000 | 60,000 | Total per | 60,000 | 70,000. | 130,000 type of - Shave 190,000 ~ 420,000 = 10,000 (Amount to be reduced) Step 2: Reduction of the heirs’ shares. Formula: Eee share x Amount to be reduced A= (10,000 {jx.000y 70.000 30,000) 40,000) 70.000 8,571.43, rootN ic eeu ica che eae | “| 30.000: | -1,428.57 | 26, 871.49 42,000 | +8,000. | | >n,nna © +20,000..| 20,000 F-00000: | -ori.a9 | 51, 420.07 Survival of Omitted Heir itis also an éssential conation tnat ine compulsory heir who is. omitted in the“testator’s will should survive the testator (JURADO, Succession, supra at 180) If the Omitted Compulsory Heit Dies Before the ‘Testator Concurring views ‘According to the second paragraph of Art. 854, tho institution shall be effectual, but without prejudice to ‘the nght ot representation’ wnen it propeny. takes place, Hence, when. there is a surviving representative of the deceased compulsory heir who haa boon omitted in teotator’s will, euch aoa child, the*effect is that Such child shall succeed to the Jegitime which would have gone to the heir omitted (JURADO. Succession. supra at 180). 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 287SUCCESSION If a compulsory heir who has been preterited dies before the testator, It's the sameas If there had beer ro preterition. However, the right to representation should not-be-lost sight of: If thespreterited heir has. logitimnato. childron and: dsecondante.ontiled “io represent him, and they have been also left out of the will, the institution shall be annulled Just the same, even if the preterited Heir dies"before the testator (3 TOLENTINO, supra at 190). Effects of Predecease or Incapacity 4. Voluntary Heit: Transmits no right to his heirs® 2. Compulsory. Heir: Transmils to his representatives his right to the legitime but not to the free portion (CIVIL CODE, Art. 056). Effect of Repudiation Whethor, voluntary or compulcory, the heir wha: repudiates his inheritance cannot transmit any right {o his own hers. (CIVIL CODE, Art. 856). Note: The rule is absolute. - In case of predecease; incapacity érrept vacancy. is filed:-up. either bys Substitution, representation, accretion, or jintestate’ succession (JURADO, Succession, supra at 197): tlustration: Z_ has an. | exile! amounting to 500,009. X and ¥ are legitiiate children of Z, wile Alp the Ghid of XZ then inated X and ¥ 90 hia hes, 1 IX preleceaned: 7. hou distributed? LY 2 1X jepuaitey his “le estaté be distibuted? 3. Inthe same case.as (1), what if child? Answer: 4. A would only be eniled to the amount of P125;000 (or ihe amolint of the legtin’: of X {rom 2) by right of representation. ¥ on the other hand’ shail ‘receive ‘the amount’ of 375,000 (P125,000 (¥'s legitimie) and P'260,000 (irom the. {tee paction)) (in accardaner with Articles RBG ‘and 972 of the CIVIL CODE)... 2. ¥ would tnlert Uieswhible PB00}000 tioui-Z. X having repudiated his. share. may. not be represented (CIVIL CODE, Art 977). 8. A would not inhorit-from_2 even by right of febresentation. The relationship (by legil fiction) between A and X does fot extend to Z. Thus, ¥ ‘wold inharit PANO. ANN fear 7 288. | 2UIY SAN BEDA LAW CEN HALIZED HAR OPERALIONS a Y [A AES ‘Aid not cie, SUBSTITUTION oF ITEIRS ‘Substitution itis the appointment of another heir so that he may ‘enter into the. inheritance in default of or subsequent to the heir originally instituted (CIVIL CODE, Art. 89/) There may also be: substitution of legates: and dovisces ( PARAS, supra at 228). General Li n Ifthe lieie for whom. a Substitute is appointedsis a compulsory heir, the-rule is that the substitution cannot affect the leyiitne of-suct tit, (JURADO, Succession, supra at 189). Purposes: 4. ‘original hair and not Yo the substitute UNLESS the testator provides otherwise: Substitution will lake place only:If all me onginal. ners are < Segiaiod BALAN: Svecesson. sua. at Example: X makes thé folowing provision in his Wi “Lnstiute A and t to 1/3 ot my estate and nominate, CaS” their substiuie” If A predeceases B, the 1/3 portion, upon'x’s death goes. to D; there’ is iv substitution by. C. Substation occurs only it both A and B are disqualified. bew 3. Resiprooal (cIviL.. cove, Sustitucion reciproca; When 2 or more’ persons are not only mstituled as news, Dut are. also designated mutually.as substitute for each other. Are 861) Mlustration: X instituted:A to.¥4 of his @stato, B to % of his estate and C to the remaining ¥4. X ‘gsigriated allo ihem_as reciprocal substitutes of each other. B:predeceased X. The valued of the estate is 600T. Distribute. “Answer: Formula: ‘Share of heir x Amount to be shared ‘Aggregate amount of institution %or 600T =300T % of 600T = 150T %of 600T = 150T° 007 24507 ~ 1007 \ 4507 s ABiideicommissary or'iidirect Substitution — Sustilucion deicomisoria, That which takes place “when the fiduciary “or frst_ heir instituted is entrusted with the: obligation to preserve and tranemit to a eecond hoir tho Whole or part of the inheritance’ provided ~ such, substitution does not go beyond one dearee from the heir originally instituted, and Provided further, that the fiduciary or first hoir and the coeond hoie aro living of the time. of the. death of the. testator (CIVIL CULE, Arts. 83-860), Femina ihe rm he Testor Testaror } 3 ( rioucuar OIS SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 289istinction from simple substitution In simple substitution only one. inherits; in fideicommissary, both heirs inherit the property (oF ‘right to it-simulfaneousty, “although the enioyment and possession are successive (3 PARAS, supra at 239). Requisites of Fideicommissary Substitution: (e80) a. There. must be a. first sheir.fduciary) primafily called ‘to the Enjoyment of the estate. He is recognized as ‘an instituted heir, and not a mere administrator of the property, Tho frst heir is indeed. almost tke. a usufructuary, with the right to enjoy. the propery, hus, ike a usutructuary, he cannot alienate’ the property, But unlke-2 usufructuary, he is not requited to,fupish a bond. Also, unike a. usufuotVary, Ihe, ‘eniilled to a refund of useful iiprovements (3PARAS, supra at 242)/ Pending the: transmissi6ii~or/Gelivery, he (fiduciary) possesses. “the . Benoficial ownership: ofthe property, although the naked. ownership) is vested | in the fideicommissary (JURADO, Suecession,; supra at 207). Ne The “first heir” may: (@educk\ from. the: | inheritance (1) legitimate expensed eubh as necessary repairs). (2) legitimate credits (loans for payment. of, taxes). or useful” improvements (such a8 @ buidings 2 House, lc.) Exception: ithe testator has pjov That ne deductions shall be made of only @ specified ainount shall bededucted {| (PINEDA, supra at 182) sr ME bi There’. must bea. Seochd “heir (ffdeicommissary) to whom the property is transmitted by the first heir. He isa ‘soit of “pakéd “owner.” Upon transmission to him of the property, ful ‘ownership is consolidated in him (3 PARAS, ‘supra at 244), The’ second. heir inherits not, rom. the’ ist heir” but. from: the testator. (Perez: v. Garchitorena, G.R. No, 31703, February 13, 1930): As such, he shall acquire a ‘ight to the: succession from the time ofthe testator’s death, even though he. (second heir) should die before the fiduciary. His fight shall pass to his heirs (CIVIL: CODE, At. 866). 290 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS As SUCCESSION Said second heir must be capacitated to succeed not the first heir but the testator (3 PARAS, supra at 244) ©. An Obligation clearly” and expressly imposed by the testator (fideicomitente) upon cuch first hoir to prosorve the estate ‘ahd to transmit it to the second heir, ‘The obligation to. preserve and. transmit must be given clearly and expressly, either by giving the substitution this name of - Hideicommissary substitution," of” by Imposing upon the first heir the absolute obligation to deliver the property toa second heir (CIVIL CODE, Ar. 867, par.'1). It the obligation. is conditional, there is no fideicommissary . substitution (3. PARAS, supra als242). Ca mere suggestion, advice, or request is 7 matie instead of an obligation, there is.no fidoicdmmissary substitution. In such case, therewill\be @ simple institution of the: first “ox fieifxind:the second heir gets nothing (3 \PARAS' supra at 242). _Without thd obligation clearly imposing upon the first heicthe preservation of the property +) its transmission to. the: second heir, ihere is)'no-fideicommissary substitution /(Rabadilav. C4, G.R. No. 113728, June 28, ve +4and 29 heirmust be only ane degree * apatt (CIVICODE, Art:-863) By providing thatthe substutfon shall not 19 bevond “one. degree "from the heir Figinally instituted’, the present Code has. -abvigusly followed ihe interpretation of the ‘word “degree” as generation. The Code thus clearly ndiéates: that the second heir must be related to and be one generation from the first heir (Ramirez v. Vda. De Ramirez,'G.R. ‘No. L-27962, February, 15, 1982). Both the fiduciary and ideicommissary must be ving (or atleast conceived) at the time of the. death of the testator (CIVIL CODE, Art 863), Limitations of Fideicommissary Substitutio (LOBE) 1. Fiduciary and fideicommissary must be Living at the time of the death of the testator; a. Living — this requisite is defined in Art. 40-41 of the Civil Code b. Qualified — this requisite is governed by Art 1024-1034 of the Civil Code3. Suisfitution- must not Bu 2.. Substitution must NOT go beyond One degrae {rom the heir originally instituted; 2 Views as to the meaning of “one degree” a. . Traditional view (degree of relationship) = When the law says that the. substitution must not go beyond one degree from the heir originally instituted, what-is meant is that the fideicommissary substitute must not be beyond one degree of relationship from the fiduciary heir. Consequentiy, only-the child or parent of the latter can be appointed 199 fideicommisoary hele: b., Modern: view. (designation ‘or transmission/ Jlamamiento) — When the law says that the substitution must not-go beyond one degree from the heir originally instituted, what is. meant is that the substitution must not ‘extend ‘beyond’ one degree of designation from the heir originally) instituted. Consequently, any person, ‘whether Aatural or juridical, or any entity net disqualified by law to inherit from the testator can be. appointed as fideicomissziry hel GURADO, Succession, suora af 1975196), By providing thet the substitutsn 2holl not go ‘beyond oné. degree. "from) the* heir Originally instituted’, the: present’ Code has, obviously: followed the: interorétation of the word “degree” as generation=The Code thus clearly indicates that the, secondihcir must he related to.and'be-one generation from the first helt (Ramirez v. Vda, D6 Ramirez, GR. No, L-27952, February. 15, 1982). Gne degree ircars one geferaigh (2 PARAS, supra at 244), Se A fideicommissary substitution is void if the first heir is not related in the 1% degree to the Sewuin hel (Rame ¥. Vda, De Ratios, supra). len ‘the® legtime. of ‘compulsory heirs; and ‘The legitime is expressly. reserved for the compulsory heirs (CIVIL CODE, Art. 886). ‘Substitution must be made Expressly (JURADO, ‘Succession, supra al 197): a. By giving it the-name of a fidelcommissary substitution; or b. By imposing upon the fiduciary the absolute ‘obligation to preserve and to: deliver the property to the fideicommissary. SUCCESSION ‘4 GEDA LAW CENTRALIZED WR OPERATIONS ~ MEMORY AD 2019 ‘Tima When Inheritance Shall he Transimitted to the Fideicomissary Hs 2. 3, ‘Time chosen by testator; or If testator does not fix'a period, discretion of fiduciary; or In case of doubt, after the death of fiduciary (ld. at 202). Ilustration: A, who died in 1980, devised a house and lotto his friend, F, as fiduciary heir and to G, the eldest son of F, as fideicommissary substitute or second heir (F has 3 sons G, H andl). In 1995, G died he waa auirvived by hie two legitimate children, ‘Jand K. In 2000, F died intestate survived by his two remaining Sons, H and |, and his two grandchildren Jand K, 1 ‘Who has-a tight over the house and lot? What if Hand | claim their legitime alleging that the house and lot belongs to their. father's, estate? Answer: 4 ‘J.and K. Upon the death of the tootatar A; G ‘acquired,a.right to succession even thoughshe Dledecessed F, the'liduciary. Ihe right ot the second heirs’ shall pass to his heirs. (CIVIL CODE, Arf, 866). J and K being the heirs of G are end to the houce and lt H and/l canriot claim their right to legitime over the hduse and\iot because they do not torm part of the estate of F (their father, the latter being a fielciary. whio’ merely has usufructuary rights ovor—the-—subject property. It is~ @ ((ideicommissary) who holds naked ownership Jot the house and fot Illustration: T instituted his friend A as fiduciary and Boas fdcicommiseary. A has 2 cone; and C. B leo has 2 sons, D and E. B died in 1990, while died in 1995. 1 2, Answer: 1 é Is there a valid fideicommissary substitution? Will A inherit from 7? No. The law requires that both the fiduciary and fideicrnmmissary must he living atthe time-of the testator's death (CIVIL CODE, Art. 663). Here, B (29 tiveicunnnissary) predeceased the testator. Yes... The nullity of the fideicommissdry substitution does riot prejudice the validity of the instiition of ‘the heirs. first sosignatod; the fideicommissary clause shall. simply” be considered as riot written (CIVil: CODE, Ar. 868). 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 291SUCCESSION SAN BEDA LAW CENTRALIZED Beh OPERATIONS - EMORY 1D 2019 Ri rroucraryy (Fifeteominissary) and (Petiens) “Jana ie (Gsttoie When. “the. substitution is _ conditional, the: fideicommissary has only a mere hope. or ‘expectancy pending. the fulfilment of the. condition, but:once:the condition is fulfilled, tHe “obligation. to transmit or deliver tne property arses, (JURADO. Succession, supra at 202) Fideicomiso ‘Thore is really one heir: Botween thetestator and the: heir was a midtle man or agentwhase function was in many: cases, to: intervene onlvtin ord, that an incapacitated. person (the feit)-could suceged from, the testator (8 RARAS, supra at 240). Void Substitutions: (EPIC)\ D -Fideicommissary aN Sibi are made in an Express manner. ot 2. Provisions which contain a Perpetual Se TE to alienate, and'evan a temporary one boyend the lmitfixe in Art. 863. J “Tho prohbiin td alienate is'good on for 20. yoars, beyond that is void (CIVIL CODE, At. 870). Reasons: 2. . Toigive more impetus to the socialization of the ownership of property; ancl 'b: To prevent.the perpetuation of. tatge holdings, which give rise to agrarian troubles (IURADO, Sucassinn, enna 21208) Note: When the testator prohibits the alienation of the property‘during the: lifetime of the heir, it «shall be free (a) after 20 years if the heir shall live, for mare than:20 years or (b) if he dies before the lapse of 20years, the: prohibition terminates. upon his death and the: property passes to his heirs (PINEDA supra af 157). ilustration: A was given his legitime in the form of a house: In'the will, A was prohibited to sell the house within a period of 20 years. Can’A sell the house even before-the expiration of sald period? ‘Answer: Yes. This prohibition, even if less than 20. years, canriot be applied: to. the: legitme (CIVIL CODE, Art. 904 par. 2; 3: PARAS, supra ‘at 260). Note: Article 870 does not apply if there is a fideicommissary substitution, for this must be ‘governed by Art. 867(2) (I). 35° {nose which leave toa person tne whole or part of the hereditary. property in order-that he may apply or Invest the. same. according. to secret instructions communicated to himby the testator «(also called “tacit fideicommissum); and 4. yThose. which impose upion the: heir the Charge. [of paying to -vatious persons successively, beyondthe, limit. fixed “in Art. 863, a. certain ificofe or pehsion (CIVIL CODE, Art: 867), * ilustrations instituted F to the fee portion of his estates X alsa provided thal the land shall be inaignable\for) a feriod' of 20-years after his “death. X died in1980. 10 years after F ied longér'-falls: within: the, tone-degroe “lihitation’ (Art. 867, par.2in relation to Art: 863). Bis alréady two dearees away from the heir (F) orginally instituted and i thus not covered by the: same, ‘charges 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 297SUCCESSION Note: For illegitimate children to be compulsory heirs, they must be recognized (9 PARAS, supra at 307). Mere proof.of fiiation is not enough, wfiat is important is recognition of that fiiation (Noble v. Noble, G.R. No. 17742, December 17, 1966). Compulsory Heirs 1. If Testator is a Legitimate Person 2. Legitimate Children and Descendants (cD); be In default of the “foregoing, . Legitimate Parents and Ascondants (LPA); c: Surviving Spouse (SS); .. Mlegitmate Children and Descendants (ILL) Note: (c) and (d) are NOT excluded by (a) & (b) neither do they.exelude one another (JURADO, Succession, supra at 234). 2. If Testatoris an Illegitimate Person - a. Legitimate Children’ and. - Descendants (LoD); z . legitimate Children . ang/ Seaton (ICD); 6 In default of the fo or) at Parents (IP) only; y 4. Surviving Spouse (8) (om CODE, Art. 887). : ‘Summary of General Rules ‘12 Direct descending line-| a. Ruloof prefercnce ce ing bb: Rule of proximity. ©. Right of representati = of preneracn, incanarity, meas (iFtestatoris a legitimate person: LCD Snly ~~ can represent; If testator ia an ilegitime person: both LCD and ICD\can represent 4, “it all the LED- repudiate their (egitim next generation of LGD ‘succeeds. i ‘own right. 2, Dirbet acoending lino ‘a> “Rule of division by lines be Rule of equal division 3.__Non-impairment.oflegiime L Table of Legitimes .egitimate Children and Descendants _ legitimate Children. and Descendants Divide ‘by the # of LCD, whether they survive alone or with ennénrring CH a 2. The remaining 1/2 shall be atthe free disposal of the testator 4. The legitime of he SS shall ibe taken only from the free portion (eivi-cODE, Art | Se téeo: {yor ~ | 2-in gage - of legal se | Cope} Senaration, the Art 892. | eit wae. Uie part). |” deceased who had given cause for the Same (CIM. CODE. £ Alt 892). yp 4. Divide 112 of - the WT NS ‘estate by the ‘number JES of Leo - 2. If there are two or as more LGD, the \ |Nsame ds. | legltime of SS isthe “2or\ | \thatot'\ | cameras that of each _-more| | eachlcb\| LeD.and-it shall be Lop;) | (Givi || taken trom tie: tree PSs} |. CODE. | portion (CiviL. CODE: 5 | artaoz| | ar. 892, / 12) pa 2).:| ® aitor , deducting. the J) leaitime of te $S, the / “remaining shall be at the. free disposal. of the testator 4. The. legitime of the IED. shall. be. taken | ftom, the free portion (Givi. CODE, art. 888). 2, In,case.of severallC: a. If firs. portion. ie sufficiont, each IC gels 1/2 01 share o | “LCD. free. portion. is insufficient, divide it among the: ICD 5 equally: ~~ [ait ther are 2'or more LED, ‘the léaltime of the SS is the sare as that of each LCD and it shall be taken from the free portion (CIVIL CODE, Art, 892). 2.. The -legitime of ‘the ID hall be token Lop; 88; icp 90, £019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS:SUCCESSION ‘S/W D4 LA CENTRALIZED AR OPERATIONS ~ MEMORY AID 2019 trom the fe porion inst tbe tay rovidod that No itl talstied (Civ legitime .of such’ ICD. CODE, Art: 895 par. shall nol excec the a et free portion and that 2. The remaining 1/8 thee yey tes aoa moat fret bo aly ; dioposed of by he salistied (CIVIL, testator (CIVIL: é ee Art. 895, pat: CODE. Art. 899). se 1. If there are more than aici Samana tp’ | | ICD duide equaly ‘among them. 2. The remaining 1/2 shall be “al the free disposal of. the a. If free- portion is ico | flv sufficient, each IC CODE, gets 1/20f 1LC, Art. 901). b. If free. portion io insufficient, divide eee it among the ICD “8; | The remaining 1 shalt equally. up a 178 | be a the tree disposal of 1. This rue. “ano @ | ico. | COME | eaten. (OMe whether they survive 42 alone or with other ipa | (CIVIL. | classes of CH. of cove, | 2. They innenisn”derau ‘Ast 689). |" of LCD otherwise excluded? 4. THe 4/4 teiwhich ICD is nee jytaken,| from Uiestreg:powtoth (CIVIECODE, Art 4. One third (1). it marnage is in-artculo mortis and the testator spouse died within 3-months after the marriage. ’Note: Applies only i i was the deceased. who was. ‘the party: in Ganiger uf deal at Ure 17% te | lime of mamage: and wea | die ihe caube of deans nen | (OM. | deed sna” SAME ae ne ‘are a96). |» 1eD. sickness, illness or 3. The. remaining 4/4}... 118; TOMY Sonia ali shall bo at the iroo ‘i 19 ‘ime of mamiope = the disposal. of ~ the [tates 412. fone fe Ja testator (Gti? | POG A aval (OWL | ptamage purely. fr Tr The lgtime oro SS (p00 | franca 7s : 12; shall be taken from 1 tule applies only'to @ tong [ot 0] 5 thetiee partons |, Gece Getter Ser | Teivn }2- The. remaining 114 succession @ Cope «| shal beat he troe PARAS, supra. t art. 883): |" disposal “of, the. ~ sou). 2 testator. 2 ae att 1/2) sien 2 f cy have book Ing The leg ofthe SS ce husband and we tia | and FEO sha for mee en Sear V8; = oe before marriage. in UPA: 4/4 portion provided that ‘articulo inortie se | (ait, | he tal leghinaot ae atl ico | ME) Sten 160 shal not : mariage is notin ;, | exceed the. foe =| atte eet 21.899) |. orton, and tha the el er 2 oe, legitime “of the SS. “2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 2994. The remaining one : half 4/2 in (b) and (c) herein shall be-at the {toe disposal of the testator 412___| The remaining 1/2 shall ip | (IM, | be.at the free disposal of CONE, | tha testator ‘Art 903). ip, | Bxclided; | Children inhert-in the anyenie| I depends | amounts established in (LenS | {GIVE | the foregoing rls. DY" | ant 903) IP; tia | Only the parents of IC ss 4a > | aro included. < | (envi | Grandparents ond.other | CODE, - | ascendants ‘are | |] Art. 903) | excluded: “| when patents (legitimate i tg | IER pe | > Hegitimate ascendants of OEE OH canary: |:thejadoptéd concur with ef (FAMILY the adopters, 1/2shallbe.| adopted. | CODE... | intlorited: by the parents Adopters | Art 190. of ascénéanta, nd the Pan 3) real fing” halt By the |e $ “> | adopters! = Same *['As\ (2 rule, “ashes | shareas-| children. are entitled to | | AG; |= LOD: |'the- same successional LOD} =: (CIVIL fright’ as legitimate” CODE, | chicrors— Ie Ant. 979). Lt URADG, ‘SUsceSRion, supra at G2 a2). Note; “There are” contlcting views as to the applcabily of Ait. 190 ofthe ‘Family Codecto ‘instances, where Both the adopters and the LPAP cohcur atertne death ofthe adopted en. Oné view is'that thé’ Sec! 19 of LA. 8552 amended the provisions of Ait: 190 of the Family Code. Under Sec.-18, the adoptedand hisMnet parents by nature inly only succeed ‘irom ‘each ‘other ‘by way of tStementary ‘succession. The Domestic Adoption ‘Act extinguished the reciprocal rights.of succession that exist between the two, incliding the right to the legitime and ‘rights’ arising from legal or.intestato succession (RABUYA, ‘The. Law on Persons and Family Relations (2008), p. 616). Anothet view is that Art: 190 of the Family Code, Continues to apply, and that the adopter and. th LPIIP shall divide the entire estate, that is, one-half 200 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS SUCCESSION SAY EDA LAW CENTRALIZED BAR OPERATION tobe inherited by the parents or asceridants and the other half by the adopters: (JURADO, Succession, supra-at 241), 1. Lagitime of Legitimate Descendants fr ‘Consists of 1/2 of the hereditary estate of their legitimate parents or ascendants, while the other half is at the latter's free disposal (CIVIL CODE, Art 888) ‘Rute ‘of proximity applies wnere tne relative nearest in degree excludes the more cistant ‘ones, saving the right of representation when it properly takes place. (Le, grandchidren. are ‘excluded by the presence oftheir parents inthe slate oftheir grandparents) (CIVIL: CODE, Art 962, par. 1), “Rule in case of Adopted Child The adopted shall be deemed to be a legitimate eh he adopter A No bbz: $26 17). | Becuptions: Wheiifle,adoptee and hisiner Biological aténi(s), had left a. Gill the: law: on testamentary... Successién. shall. govern: (FAMILY. CODE, Art. 189'in rel, o Secs. 17. 9nd-18 6 RIA, No. 8552 or the Domestic: > “Adopiidn Act.oh1998) When the adopter dies before his LPA, ors incapacitated to inhent trom Said LFA, oF 1s disinherited by bis LPA, the adopted cannot 7] jesse by tight 6 representation (JURADO, Secession; Supra‘et 236). © Retio Ad Supplendan Legitiman (Right ot [/\ Completion of egitime) lkesonie hes. are genuinely ‘interested. in ‘séchiing that part of their late father’s property Ac \whictictias beer reserved: for them. in” theit Séapacly as Gompulsory heirs, then they should simply exercise. their right of completion’ of legitime (Gala v.. Elie. Agro-Industrial-Corp., GR:No, 15819, December 17, 2003). “Legitime of Legitimate Asceriaants Consists of 12 of the heredliary estate.of their children ‘and descendants (CIVIL CODE, Art 889, par. Iney are exciudéd from the succession it they concur with legitimate, children or descendants, (JURADO, Succossion; supra at 244): Rules of Division for Le Ascendants: $ a. The legiime, shall be divided between the “LPA equally. - Ifone of the LPA dies before the testator, the Whole shall pass to the survivor. inate Parénts-and b.Iboth LP dies before the testator but: i Survived by ascendants. of) equal degree, legitinie shall be divided equally between the patemal and maternal line. i. Survived by asvenidanls uf uilfeient degrees, legitime shall pertain entirely to the nearest degree (CIVIL CODE, Art. 890; JURADO, Succession, supra at 245-246) Illustration: X, ‘the testator, has.an_ estate ‘amounting to-P240,000. X was survived by_his father F, mother M, patemal grandfather PGF, paternal grandmother PGM, maternal arandtather MOF, and maternal ‘grandmother MGM: a, How shall his estate be-divided? 8. “IEF predeceased x? c. If, M, and PGM predeceased X? Answer: e a, F and M shall both be entitled to P120,000) each. The legitime reserved for the’ legitimate parents shall be divided between “them equally. (CIVIL CODE, Art, 800).9f% b. M-shall” be entitled to: P240,000." in, accordance with the.rule ‘ofgroximity. My ‘shall. exclude those farther in degtee.. Also Art. 890 of the Civil Code: providesithat “if ‘one of the parents. should! have died the, whole shall pass to thé survivor PGF shall be entitled to -P120,090. while MGF and MGM shall be entitlédito 260,000, ‘each. If the testator leaves/neither father o mother, but ie eurvived. by aecendants: of ‘equal, degree of the:patemal and.maternal. lines; the-legitime shall be divided equally between. both. lines. « (CIVIL. :. GODE, Art.890(2): Ned Lagitime of Surviving Spouse Entitled to.a legitime thevamount: of which is variable .depending “upon whether- he or: she survives. alone;or: concurrently. with other ‘compulsory heirs (JURADO, Succession, supra at 285): ‘The. condition’. of Being a: surviving: spouse. requires thal there should have been valid mariage, between: the. deceased’ and the survivor (ld. at 284-285): Annulment of voidable marriage ~ Valid until declared void by a competent court (Dio v. Dio, G.R.Na. 478044, January 19, 2041), Incase of death of a parly-during the annulment proceedings, the survivor is Cntitied to a-legitime; because marriage can no longer be annulled after the death of one of the SUCCESSION parties (Ninal v. Bayadog,’ G.R: No.’ 133778, March 14, 2000). If the party dies after the'entry of judgment of nullity or anmulient, the judgment shall be binding upon the’ parties and their successors in-interest in the settlement.of the estate.in the regular courts (AM. No. 02-11-10-SC, Sec. 24(b)) ‘The. survivor is no longer the spouse cntitled to a legitime, Legal Separation ‘The widow or widower wil be entiled to'succeed only when he or. she is the innocent spouse (FAMILY CODE, Art, 63, par: 4): If death occurred during the-pendency of-the egal separation proceedings, the effect shall ‘depend con which spouse died a, Ifitwas the plaintif (innocent spouse) who died, the proceeding “stiall_ continue. to ‘dotermine whether or not there is ground for legal: separation “which shall justify. the ‘exclusion of, the. surviving: spouse “fram inheritance (DE LEON, Succession, supra at 321). IF iwas the defendant (quily spouse) who digd, the: legal: separation-. proceedings shoul: he terminaled (FAMILY. CODE, Art 63; JURADO, Succession, supra at 296). In vase of reconciliation under Art. 66(1) of the Family Code, when-one of the spouses:should die, the lagal separation proceedings which is ill, pending -shall-be: terminated: at: whatever “stages The survivor. gets: his .or her legitime, 4 -tegardless of whether he or she is the guilty party (FAMILY CODE, Arts. 63 and 66). Legacy or devise to surviving spouse Any. devise or. legacy: given ‘to:they'surviving spouse. should sbe -considered.+as_being in addition to: his or “her-legitime, .and- must theraforn bbe charged, to:the: free: portion. Such ‘devise or legacy should be considered in the same footing as those. given to strangers. (3 PARAS, supra at 343). | agitima af tlagitimate Nescandants, The. amount, .of- their -legitime> is. variable depending upon-whether they inherit alone or as a class or concurrently with other classes of Sonnpueory hk ((URADO. Siotoeson ure ‘At-290), Under the Family: Code, there is no more distinction - between--acknowledged “natural children and: legitimate children.. They are all 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS | 301considered as illegitimate. Thus,“the 5:4 ratio no longer applies (Id. at 292). Itis the death of the parent and not the birth of the illegitimate child which ‘determines the right ‘of such child to succeed (Bulos v. Teeson, G.R. No, L-18286, October 31, 1962) When an illegitimate child’ dies before the testator. his rights to the leaitime are transmitted tohis own heirs. Representatives may either be legitimate or illegitimate descendants (CIVIL CODE, Art. 902). Reason: Illegitimate children: are. considered innocent, and therefore despite the moral lapse of their parents, they are stil given-a legitime, but precisely-because they: are. born outside marriage, their egitime are less than those given to legitimate children (A MANPFSA, suprn_at 570). Q: Can'ilegitimate descendants 6f iegitiiate hile inherit by ight of représéniation?” Av No, bocausa of tha harrier hatunanctha legitimate family (CIVIL CODE, Art/992) When ‘representatives’ (legitimate orillegitimate), in tho camo proportions! aervArt Art: 895 since, this is aso. the rule legal suooetsion “(2 PARAS, supra at 53). A 1 nae o egitmecoa. cre raga + Gata 6 fA predeseases Ty, bolhB and: il inherit by representation in te proportion 6f218 7 tot (id) ees <7 Logitime of Ilegitimate Paronte | ‘Th ilegitmate parents are entiled to 2 okihe. | Mi Roguisite ilegiimate child's hereditary estate vihen he is survived by neither legitimate descendant, nor surviving» spause, nor. illegitimate children (CIVIL CODE, Art'908). If the tlegitimato: child leaves'2 descendant, legitimate or illegitimate, the parents: have no ._ legiime (DE LEON, Succession, supra at 377) Note: Brothers and sisters are not compulsory heirs but hey may be insitted as. voluntary heirs. (3 PARAS, supra at 307). Reserva Troncal (or Reserva Extraordinaria/ Lineal) ‘The reservation by virtue of which an ascendant who inherits {fom his descendant any propeity which the latter may-have. acquired by ‘gratuitous..ttle from another ascendant or @ brother or sister, is obliged SUCCESSION to reserve such properly as he may have:acquired by operation of law for the benefit of relatives who ‘ate within the 3rd degree and who belong to the line from which such property came (CIVIL‘CODE, Art 891) Purposes 1. To prevent persons who are strangers to the family from acquiring, by some chance or accident, property which otherwise would have ‘remained with the said family (Id.,at 247); and To maintain a separation between the paternal ‘and:matemal lines (3 TOLENTINO, supra at 270). Nature: It is an exception. to both the system of Jogitime and: the” order of intestate succession (JURADO, Succossion, supra at 247). ~The reserva creatos a double resolutory condition wei = | Ig which the right of ownership of the person obliged to fesprveisaubjected (i. af 260) o\ Sunvval “of ‘elttves. of “the descandant- situs Who gar in, the third degree, and amp.) ‘if accordance wilrthis special order of succession 6" such-relatives;. euylomatio: conversion into an Pie ah of oumgrain of he resent Te) {ifthe 6 cohditions/are NOT fulfilled: propery is ENS released ahd. be adjudicated in accordance with regulon of succession (id). Ww (GOLD) * ‘The property." shauld. have: been previously, acquired by Gratuitous tile by the descendant from. another ascendant. or from a brother or sister (CIVIL CODE, Art: 891); ‘The ‘property should have been acquired by Operation of law by an ascendant from. his descendant upon the death of the latter (CIVIL, CODE; Art 891); ‘The descendant shold have died without any Legitimate issue in the-direct descending line who could inherit from him; and ‘There are “relatives. of thé Descendant: propositus who are within the third (9) degree ‘and. who belongs to’ the line from which. the property came (JURADO, Succession, supra at 250). 302 | 2019 SAN BEDA LAW CENTRALIZED BAR OPERATIONS,