CIVIL LAW

SUCCESSION

Elements of Succession:
1. Death (actual or presumed)
2. Inheritance (property and transmissible rights and obligations of the decedent)
3. Persons called to succeed
4. Acceptance

KINDS OF SUCCESSION
1. Testamentary
2. Intestate
3. Mixed

*All wills could be considered as AMBULATORY, because as long as the person who made it is still alive than it can always be
changed or even revoked.

TESTAMENTARY SUCCESSION

NOTARIAL WILL
ATTESTATION CLAUSE
1. state number of pages
*Failure to state the number of pages is a fatal defect unless, stated elsewhere in the will.
2. state the fact that testator signed the will of requested another to sign for him
3. that the signing by the witnesses was done in the presence of the testator and the testator also signed the will in the presence of
witnesses

Can marginal signatures of the attesting witnesses cure the defect of the absence of their signature at the bottom of the
attestation clause?
- NO. The signatures of the witnesses at the bottom of the attestation clause is their certification that they were present during the
execution of the will and that they witnessed the testator signing the will. The absence of their signatures negated their participation
in the execution of the will. Hence, the will is void.

Is the failure to state that “the witnesses signed in the presence of each another” in the attestation clause a fatal defect?
- YES. It may be considered as a fatal defect since extrinsic evidence or a separate evidence other than the will itself is necessary to
prove that the witnesses signed in the presence of each other. The will should be disallowed.

*Every notarial will must be acknowledged by a notary public. The acknowledging notary public cannot be an attesting witness to the
will.
*The execution of the will is a continuous act. While the acknowledgment may be done on a separate day and it will not affect the
validity of the will.

DOCTRINE OF LIBERAL INTERPRETATION – in the absence of bad faith, forgery or fraud, and undue and improper pressure or
influence, defects and imperfections in the form of the attestation or in the language used therein, shall not render the will invalid if
it is proved that it is executed and attested in substantial compliance with the requirements of Article 805.

What is the effect if there is a variance between the number of pages stated and the actual number of pages of the will?
- The will must be disallowed. You will need extrinsic evidence to prove the discrepancy.

HOLOGRAPHIC WILL

* Generally, a holographic will which contains alterations or erasures without authentication will not invalidate the entire will.
Except, where there is only one provision in the will and it was altered without authentication, the entire will is void.

*If insertions are made by a third person without the knowledge and consent of the testator, the will remains valid provided it is
proved that such insertion was made without the knowledge and consent of the testator.

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However, if the alteration was initially made by a third person without the knowledge of the testator, but after having knowledge of
such alteration the testator authenticated the same by his full signature, the entire holographic will is considered void since it is not
entirely written by the testator himself. The law requires that a holographic will be entirely written, dated, and signed by the hand of
the testator himself.

REVOCATION OF WILLS
1. By implication of law
-Implied due to the change in the family or domestic relations of the testator, or in his property or in relation to his
beneficiaries in the will, or transformation of the thing bequeathed.
2. By some will or codicil (express or implied)
3. By overt acts (burning, tearing, cancelling, or obliterating)

* If the revocation is done outside PH by one who is not domiciled in this country, the revocation should be governed by or in
accordance with the law where the will was executed.

DOCTRINE OF DEPENDENT RELATIVE REVOCATION – where the act of destruction is connected with the making of a new will, so as
to fairly raise the inference that the testator meant the revocation of the old will to depend upon the efficacy of the new disposition,
the revocation will be conditional and dependent upon the efficacy of the new disposition. If for any reason the new will fails, the
revocation also fails.

PROBATE OF WILLS
- ante mortem/post mortem

*The heirs cannot dispense with the probate of the will and just agree to divide the estate in accordance with its provisions because
its suppression is contrary to law and public policy. Art. 838: “No will shall pass either real or personal estate unless it is proved and
allowed in accordance with the Rules of Court”. There can be no partition among heirs on a property covered by a will until it is duly
probated.

*A will can still be presented for probate even if after the termination of intestate proceedings. Petition for probate is NOT subject to
the statute of limitations or prescription and neither is estoppel applicable.

Issues resolved in probate:

1. Identity of document (will)
2. Whether the prescribed formalities of law been complied with
3. Due execution of the will (absence of circumstances that may vitiate the consent of the testator)
4. Testamentary capacity of the testator

INSTITUTION OF HEIRS
1. Will must be valid extrinsically
2. There must be no impairment of legitimes
3. Heirs must not predecease, be incapacitated, or must not repudiated the inheritance

Presumption of Equality - Heirs instituted without designation of shares shall inherit in equal parts. (Art. 846)
Presumption of Individuality – Heirs instituted individually and others collectively, those collectively designated shall be considered
individually instituted, unless it clearly appears that the intention of the testator was otherwise. (Art. 847)
*The two presumptions above-stated apply only to the FREE PORTION.

Presumption of Simultaneity –If the testator calls to succession a person and his children, they are all deemed to have been
instituted simultaneously and not successively. (Art. 849)

PRETERITION – (total) omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the
execution of the will or born after the death of the testator.
*Effect: Annulment of institution of heirs and intestacy shall apply. Devises and legacies shall be valid insofar as not inofficious.
*If the omitted compulsory heir predeceased the testator, the institution shall be effectual, without prejudice to the right of
representation.

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*There is no preterition if the one omitted is the spouse.

Example 1: T has 3 children, B, O, and Y. T instituted as sole heirs to his estate B, O, and his friend F. T did not give anything to Y
either by will or donation inter vivos. Estate = 720K

B will get 240k; O will get 240k; and Y will get 240K
F will not get anything since he is not a legatee but instituted together with B and O.

Example 2: A – instituted; B – omitted; F – legatee 100K

A and B will get 450K each

F will get 100k

IMPERFECT DISINHERITANCE – disinheritance not valid because the cause is not specified or cause is proven to be false
*Effect: not totally annul institution of heirs, only to the extent of the legitime of the imperfectly disinherited heir.

Example: A – instituted; B – disinherited without cause; F – legatee 100k; Estate = P1M

A will get 250k as legitime + 400k as instituted heir

B will get 250k as legitime
F will get 100k

A VOLUNTARY HEIR MAY NOT BE REPRESENTED

Illustration: Pete has 3 children A, B, and C. He left a estate of 3M. He instituted A, B, C, and his cousin Mike to the free portion. Mike
predeceased Pete but left a son Sam.

A will get 500k as a legitime + 375k as voluntary heir + 125k share of Mike = 1M
B will get 500k as a legitime + 375k as voluntary heir + 125k share of Mike = 1M
C will get 500k as a legitime + 375k as voluntary heir + 125k share of Mike = 1M

*Since Mike is a voluntary heir who predeceased Pete, he can transmit no right to his son Sam. Mike’s share in the free portion of
375k shall be added to the share of his co-heirs A, B, and C by RIGHT OF ACCRETION.

SUBSTITUTION OF HEIRS – appointment of another heir so that he may enter into the inheritance in default of the heir originally
instituted.
Causes: predecease, incapacity, or repudiation

FIDEICOMMISSARY SUBSTITUTION - fiduciary or the first heir instituted is entrusted with the obligation to preserve and to transmit
to a second heir the whole and in part of the inheritance, shall be valid and shall take effect, provided such substitution does not go
beyond ONE DEGREE from the heir originally instituted, and provided, further, that the fiduciary and the second heir are living at the
time of the death of the testator.

*Not required that the testator be related to the fideicommisssary.

Illustration: X instituted his cousin Y as first heir or fiduciary and Z (son of Y) as fideicommissary substitute.

X Y Died 2020
Died 2015

Died 2017 Z

A B

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*Art. 874 – absolute condition not to contract first or subsequent marriage imposed by the deceased spouse, or his ascendants and
descendants against the widow or widower applies only to the FREE PORTION.

LEGITIME – part of the testator’s property which he cannot dispose of because the law has reserved it for compulsory heirs.

Kinds of Compulsory Heirs

1. Primary Compulsory Heirs – concurring heirs; presence of one does not exclude the others
2. Secondary Compulsory Heirs - inherit in default of primary compulsory heirs

*Donations given to children are charged against their legitime. They are treated as advances to their legitime.
*If the child received a donation that exceeds his legitime, the excess is considered as advances to the free portion.

LC and LPA - Always ½ of the estate regardless of concurring heirs but there 2 groups cannot concur.

SS ½ ; 1/3 ; ½ (alone Article 900)

¼ - If with LPAs or with only one LC; same as one LC if several survive
1/3 – With ILLC only Art 894
1/8 – With LPA + ILLC Art 899
¼ - With LPA or IILP only – Art 893/903

ILLC ½ - Alone
¼ - With LPAs of their deceased parent Art 896
¼ - With LPAs + SS of their deceased parent Art 899
1/3 – With SS of their deceased parent Art 894
½ - of legitime of each LC Art 176FC
RESERVA TRONCAL (rules on intestacy applies)
1. There must be a property acquired by a descendant from another ascendant, or a brother or a sister;
2. This property received by gratuitous title by the descendant passes to an ascendant by operation of law; and
3. There are living relatives of the descendant within the third degree and who belong to the line from which the property came.

Personal elements:
1. Ascendant, or a brother or a sister from whom the descendant acquired the property by gratuitous title is the ORIGIN
2. Descendant is called PROPOSITUS
3. Ascendant who received the property is called RESERVISTA
4. Third degree relatives who survived the reservista are called RESERVATARIOS

*Reservatarios inherit from the propositus; their capacity to succeed must be reckoned from the propositus.

Illustration
PGF PGM
(origin)
A B (reservista)

C died without issue; land

C passed to his mother B
(propositus)

DISINHERITANCE
1. Must be contained in a valid will
2. Cause must be one specified by law
3. Legal cause must be true and proven

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*Disinherited heir shall lose his/her legitime, however may be represented by his/her compulsory heirs.
*If the disinheritance is contained in a void will, it will not be given effect.

INTESTATE SUCCESSION
*All compulsory heirs are also intestate heirs.

RULE OF PROXIMITY – relatives nearer in degree shall exclude the more distant ones, save the right of representation when it
properly takes place.

RULE OF PREFERENCE BETWEEN LINES – relatives in the direct line are preferred over the relatives in the collateral line
- the descending line is preferred over the ascending line.

RULE OF EQUAL DIVISION – relatives in the same degree shall inherit in equal parts
XPNS: 1. In the ascending line, the rule of division by line is ½ to the maternal line and ½ to the paternal
line, and within each line, the division is per capita.
2. In the collateral line, the full-‐blood brothers/sisters will get double that of the half-blood.
3. The division in representation, where division is per stirpes – the representative divide only the
share pertaining to the person represented.
Note: The share of an illegitimate child is ½ of the share of a legitimate one. Full blood brother or sister is
entitled to double the share of half brother or sister (Art. 1006). Compulsory heirs shall, in no case, inherit
ab intesto less than their legitime as provided in testamentary succession.

IRON CURTAIN RULE (Barrier Between Legitimate and Illegitimate) - An illegitimate child has no right to inherit ab intestato from the
legitimate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the
illegitimate child. (Art. 992)

RIGHT OF REPRESENTATION – right created by fiction of law, by virtue of which representative is raised to the place and the degree
of the person represented, and acquires the rights which the latter would have if he were living or if he could have inherited.

*In intestacy, the right of the representative covers the entire intestate share of the person represented.
*Available only in the direct descending line never in the ascending line.
*Right of representation takes place only in favor of children of brothers or sisters, whether full or half blood and only if they concur
with at least one uncle or aunt.
Note: This rule applies only when the decedent does not have descendants.

Representation may arise either because of:

1. death,
2. incapacity, or
3. disinheritance.

When is right or representation not available?

1. As to compulsory heirs: In case of repudiation, the one who repudiates his inheritance cannot be represented. Their own heirs
inherit in their own right.
2. As to voluntary heirs:
Voluntary heirs, legatees and devisees who:
a. Predecease the testator; or
b. Renounce the inheritance cannot be represented by their own heirs, with respect to their supposed inheritance.

*The only time that grandchildren inherit by their own right from the grandparent is when their parent repudiated the inheritance.

Does the right of representation apply to adopted children?

No. The right of representation cannot be invoked by adopted children because they cannot represent their adopting parents to the
inheritance of the latter’s parents.
Reason: The law does not create any relationship between the adopted child and the relatives of the adopting parents, not even to
the biological or legitimate children of the adopting parents.

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Note: Under R.A. 8552 or the Domestic Adoption Law, the adopted child and the adopting parents have reciprocal successional
rights.

SUMMARY OF SHARES IN INTESTATE SUCCESSION

Legitimate Children and Descendants (LCDs)
Alone Entire estate (LCDs exclude LPAs, all collateral
relatives, and the State)
With Illegitimate Children 2:1 (concurrence theory) but shares in the
and Descendants (ICDs) legitime should be first satisfied
With Surviving Spouse (SS) Equal shares (has a share equal to one LC)
With SS and ICDs 2:2:1 (concurrence theory) but shares in the
legitime should be first satisfied
Legitimate Parents and Ascendants (LPAs) and/or Adopting Parents
Alone Entire estate (LPAs exclude all collateral
relatives and the State)
With Illegitimate Children ½ (LPAs) * ½ (ICDs)
and Descendants (ICDs)
With Surviving Spouse (SS) ½ (LPAs) * ½ (SS)
With SS and ICDs ½ (LPAs) * ¼ (ICDs) * ¼ (SS)

*Other Collateral Relatives – Uncles, Aunts, Cousins, Children of Cousins (If they are not BS/NN)

SUMMARY OF SHARES IN INTESTATE SUCCESSION

Illegitimate Children and Descendants (ICDs)
Alone Entire estate (ICDs exclude Illegitimate parents,
all collateral relatives, and the State)
With Surviving Spouse (SS) ½ (ICDs) * ½ (SS)
Illegitimate Parents (IPs)
Alone Entire estate (IPs exclude all collateral relatives
and the State)
With Surviving Spouse (SS) Concurrence theory; ½ (IPs) * ½ (SS)
Surviving Spouse (SS)
Alone Entire estate (SS excludes “other” collateral
relatives and the State)
With Brothers and ½ (SS) * ½ (BS/NN)
Sisters/Nephews and Nieces
(BS/NN)
Brothers and Sisters/Nephews and Nieces (BS/NN)
Alone Entire estate (BS/NN excludes “other” collateral
relatives and the State)
Other Collateral Relatives (OCRs)
Within 5th Civil Degree Entire estate (OCRs exclude the State; OCRs
succeed without preferences or distinction of
lines or blood, but the nearer in degree exclude
the more distant ones)
State Entire estate

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RIGHT OF ACCRETION
1. Two or more persons are called to the same inheritance or the same portion thereof without special designation of shares; and
2. One of the persons so called dies before the testator or renounces the inheritance or is disqualifying to receive it.

COLLATION - It is the process of adding the value of thing donated to the net value of hereditary estate.
To collate is to bring back or return to the hereditary mass, in fact or fiction, property which came from the estate of the decedent,
during his lifetime, but which the law considers as an advance from the inheritance. Collation is applicable to both donations to
compulsory heirs and donations to strangers.

GR: Compulsory heirs are obliged to collate.

XPNs: 1. When testator should have so expressly provided;
2. When compulsory heir repudiates his inheritance
 
What are the properties that are to be collated?
1. Any property/right received by gratuitous title during testator’s lifetime
2. All that may have been received from decedent during his lifetime
3. All that their parents have brought to collation if alive

What are the properties NOT subject to collation?

1. Absolutely no collation – expenses for support, education (elementary and secondary only), medical attendance, even in extra-
ordinary illness, apprenticeship, ordinary equipment or customary gifts.
2. Generally not imputed to legitime:
     a. Expenses incurred by parents in giving their children professional, vocational, or other career unless the parents so provide, or
unless they impair the legitime.
     b. Wedding gifts by parents and ascendants consisting of jewelry, clothing and outfit except when they exceed 1/10 of the sum
disposable by will.

Note: Only the value of the thing donated shall be brought to collation. This value must be the value of the thing at the time of the
donation.
(Estate – Debts) + Donations = NET HEREDITARY ESTATE
Illustration:

Estate of T = 1,000,000 Computation:

Debts = 200,000 Estate 1,000,000 – Debts 200,000 = 800,000
Donations: X (LC) 200,000 800,000 + Donations 1,000,000 = 1,800,000
Y (LC) 100,000 1,000,000
Z (ILL) 100,000 NHE = 1,800,000
F (friend) 600,000

NHE = P1.8M ÷ 2 = 900k Note: Correlate with Arts.

908. 909, 1061, 771, 772,
X >> 450k – 200k donation = 250,000 1144
Y >> 450k – 200k donation = 350,00 1,175,000
Z >> 225 – 100k donation = 125,000 **Reduce the donation of F
W (Spouse) = 450,000

CAPACITY TO SUCCEED
- Person not incapacitated by law may succeed by will or ab intestato
- The heir, devisee or legatee must be living at the moment the succession opens or (at the time of the death of the decedent)
- 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 under Article 41.

*Persons incapable of succeeding: See Article 1027 of the Civil Code

Take note of the grounds for DISINHERITANCE (must be specified in the will) and grounds of UNWORTHINESS

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