Succession Quizzler (By Butch) Succession Quizzler Note: This is merely to review the basic principles before the

test. Please use this to supplement the book and your other notes. Its just to jog your memory

iii. Intestate Succession: That which takes place by operation of law in the absence of a will iv. Compulsory Succession: When compulsory heirs succeed to the legitime 8. Define an heir, legatee and devisee (disregard Art 782) Heir: One who succeeds to the whole or an aliquot part of the inheritance Devisee (Personal) and Legatee (Real): Those who succeed to definite, specific and individual property Notes:

1. What is succession? Succession is a mode of acquisition by virtue of which, the property, rights and obligations, to the extent of the value of the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (Art. 774) 2. Can a lessor who subsequently dies, transmit his obligations as lessor to his heirs? Yes. This obligation is transmissible because it is not a strictly personal obligation. 3. What happens to the money debts of a testator? Money debts are not transmitted to the heirs nor paid by them. The estate pays them and the heirs get only what is left. 4. What is the recourse of creditors? Creditors must pursue their money claims in the settlement proceedings. They cannot go after the heirs once the estate has been settled (Py eng Chong v. Herrera) 5. What is the definition of inheritance? The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. 6. When are the rights to succession vested? The rights to succession are vested upon the decedents death (Art 777) It follows therefore that at the time of death, the heir already owns an aliquot share of the estate that he can dispose of already. 7. What are the three kinds of succession? i. Testamentary: Results from: 1) Designation of an heir 2) Designation made in a will (holographic/attested) 3) In the form prescribed by law ii. Mixed Succession: Effected partly by will and partly by operation of law (e.g. testator owns house, lot and car and testator only wills his house, the heirs will inherit the lot and car by operation of law)

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9. What is a will? A will is an act whereby a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. (Art 783) 10. What are the non-delegable acts concerning the making of a will? i. Designation of heirs, devisees or legatees (Who will inherit?) ii. Conditions, Terms, Substitutions of designation iii. Determination of portions to be received iv. Power to decide whether or not a disposition should take place 11. What can be delegated to a third person? i. The designation of persons, institutions or establishments within the class or cause ii. Manner of distribution PROVIDED: i. The property or amount of money has been determined by testator ii. The class or cause to be benefitted has also been determined 12. What is the characteristic of a legacy/devise as set forth in Art 794? The article provides that every devise/legacy shall convey the interest which the testator could devise or bequeath in the property disposed of unless it clearly appears from the will that he intended to convey a less interest. Basically, the testator gives exactly the interest he has in the thing. 13. What are the rules as regards the formal validity of a will? Art 795 provides that the validity of the will as to its form depends upon the observance of the law at the time it is made. There are two aspects as to the validity of wills: Extrinsic (requirement of form as will be discussed further) and Instrinsic (requirement as to the substantial validity0 Example: Extrinsic: Was the will made in accordance with Art 805? Intrinsic: Did the disposition impair the compulsory heirs legitime?

For extrinsic validity: Filipinos Law in force at the time will was executed Art 815-817 provide: Foreigners Same, assuming probated here

As to time As to place

it

was

Filipinos Will Abroad: Authorized to make a will in any of the forms established by the law in the country where he is. It may be probated in the Philippines Aliens Will Abroad: Authorized to make a will abroad and will produce effect in the Philippines IF: i.) Formalities prescribed by law of the place of his residence is complied with ii.) Formalities prescribed by law of his country is complied with (e.g. Ukrainian making a will in US) iii.) Formalities prescribed by Philippine law (805) is complied with Aliens will in the Philippines: Alien may make a will in the Philippines and it will produce effect here IF: i.) Will is executed according to the laws of his country ii.) Will might be probated and allowed in his country For Intrinsic Validity Filipinos Law in force at the time of death Philippine law Foreigners Depends on their personal law Their national law

As to time As to place Notes:

Characteristics of wills: 1. Purely personal 2. Free and intelligent 3. Solemn and formal 4. Revocable 5. Mortis Causa 6. Individual 7. Executed with Animus testandi 8. Executed with testamentary capacity 9. Unilateral 10. Dispositive of property 11. Statutory

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14. What are the requirements for a person to be able to make a will? i. Must not expressly be prohibited by law ii. Must be 18 and above iii. Must be of sound mind at the time of execution (must possess testamentary capacity) 15. What are the requirements for one to be of sound mind? To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired or unshattered by decease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will: i. To know the nature of the estate to be disposed of: Testator should have a fairly accurate idea of what he owns ii. The proper objects of his bounty: Testator should know his relatives in the closest degrees iii. The character of the testamentary act: Testator needs to know that the document he is signing disposes of his property after his death 16. What is the consequence of having an unsound mind? The will cannot be probated. 17. Who has the burden of proof of showing that the testator is not of sound mind? First, it must be remembered that a testator is presumed to have a sound mind, in the absence of contrary proof (Art 800 par. 1) Rebuttable presumption of sanity: The burden of proof that the testator was not of sound mind at the time of making his disposition is on the person who opposes the probate of the will. Rebuttable presumption of insanity: However, this burden of proof will shift in the following cases: i. if the testator was publicly known to be insane one month or less before he made his will. ii. if the testator executed a will after being placed under guardianship or ordered committed for insanity and before said order has been lifted.

In both cases, the burden of proof will shift to the person maintaining its validity. He has to prove that the testator made the will during a lucid interval. 18. What is the effect of supervening incapacity or capacity? Supervening capacity (e.g. Incapable when he made a will then he became capable afterwards) and Supervening incapacity (e.g. capable when he made the will but he became incapable afterwards) will not invalidate/validate an effective will. 19. What are the two common and mandatory requirements of wills (holographic and attested)? It must be in writing and executed in a language or dialect known to the testator. Notes:

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20. What are the formal requirements of a will? (memorize) Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testators name written by some other person in his presence and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except on the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witness and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (Art 805) Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will or file another with the office of the clerk of court. (Art 806) In short, here are the formal requirements of attested wills: i. ii. iii. iv. v. vi. Subscribed at the end by the testator OR by his agent in the testators presence and by his express direction in the presence of witnesses Attested and subscribed by at least three credible witnesses in the presence of the testator and of one another The testator OR his agent in the testators presence, must sign each and every page on the left margin (except the last) in the presence of the witnesses The witnesses must sign each and every page on the left margin (except the last) in the presence of the testator and of one another All pages must be numbered correlatively in letters on the upper part of each page Will must be acknowledged

DIFFERENTIATE subscription, attestation and the attestation clause (Caneda v. CA and Taboada v. Rosal) It will be noted that Art 805 requires that the witnesses should both attest and subscribe to the will in the presence of the testator and of one another. Subscription Act of the hand Attestation Act of senses (Act attesting) Attestation Clause Refers to that part of the will whereby the attesting witnesses certify that there was compliance with the essential formalities required by law Mandatory part of the will Must state: 1. 2. # of pages Fact that testator/agent under his direction signed the will and its every page in presence of witnesses Witnesses witnessed and signed the will and its every page in the presence of the testator and of one another

of

Mechanical Subscription is the signing of the witnesses names upon the same paper for the purpose of identification of such paper as the will which was executed by the testator

Mental Attestation consists in witnessing the testators execution of the will in order to see and take note mentally that those things are done which the law requires for the execution of a will and that the signature of the testator exists as a fact

3.

Requirements of attestation clause: State the number of pages of the will The fact that the testator or his agent under his express direction, signed the will and its every page in the presence of the witnesses iii. The fact that the witnesses witnessed and signed the will and its every page in the presence of the testator and of one another Note: AC does not have to state that an agent signed in the testators presence
4

i. ii.

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Notes:

Notes:

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21. What are the requirements for handicapped testators (holographic and attested)? Art 808 If deaf If deaf-mute 1. 2. If blind If he can read: Must read the will personally

26. What are the requirements of a holographic will? (Art 810, memorize) 1. 2. 3. Completely/Entirely handwritten by the testator Dated by the testator Signed by the testator

If he cannot read: must designate two persons to read the will and communicate it to him, in some practical manner Requirements: Will must be read to him twice: 1. One reading by one of the subscribing witnesses 2. One reading by the notary public acknowledging the will

27. When is a complete date required? General Rule: The Date shall include the day, month and year of its execution. Liberal Interpretation: Only in cases of two competing holographic wills executed on the same day or of a testator becoming insane on the day on which the will was executed Ex: Feb/61 + no bad faith, fraud, undue influence + due authenticity is established = probate should still be allowed 28. What are the formal requirements for additional dispositions in a holographic will? 1. 2. Signature and date under additional dispositions OR Each additional disposition signed and undated but the lat disposition signed and dated

22. What is the effect if Art 808 is not complied with? The will cannot be probated 23. Who has the burden of proof that 808 has been complied with? The proponent of the will. 24. Should compliance with 808 be stated in the will or the attestation clause? No. There is no such requirement. 25. What is the effect if there are defects or imperfections in the form or language in the will or attestation clause? The will would still be valid PROVIDED: 1. there is no bad faith, forgery or undue influence or pressure (Art 809) 2. if such defects and imperfections can be supplied by an examination of the will itself (JBL Reyes) Notes:

SITUATION 1: Additional disposition below signature signed but not dated MAIN WILL: I leave my house to Hofi, my car to Cesar and my computer to Lily (July 17, 2011) Sgd. Claro ADDITIONAL: Oh, and I leave my beach house to Jeff (no date) Sgd. Claro Effect: Testamentary disposition of beach house is INVALID. Same goes if additional disposition is signed but not dated (Art 812) SITUATION 2: Additional dispositions signed but undated but last is signed and dated MAIN WILL: I leave my gold necklace to my wife. (July 17, 2011) ADDITIONAL (a): Oh, and I leave my beach house to Pearl. (no date) Sgd. Claro LAST DISPOSITION: I leave my car to Beth (July 22, 2011) Sgd. Claro

Effect: Additional disposition is VALID since last disposition is signed and dated (Art 813 : additional
dispositions signed but w/o being dated, with last with both signature and date)

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SITUATION 3: Additional dispositions dated but not signed but last is signed and dated MAIN WILL: I leave my stapler to Marien (July 24, 2011) Sgd. Booch ADDITIONAL: I leave my ballpens to Marien also (July 25, 2011) (no signature) LAST DISPOSITION: I leave my highlighters to Marien (July 27, 2011) Sgd. Booch Effect: Additional disposition will be invalid but last disposition is valid (Balane) SITUATION 4: Additional dispositions neither signed nor dated but last disposition is signed and dated Effect: IF made on the same occasion, signature and date on the last will validate the preceding IF NOT made on the same occasion, only last disposition will be valid (Balane)

32. Can lost holographic will be probated? No it cannot. The document itself must be produced. However, a photocopy of the holographic will can be admitted. 33. Why must the document itself be produced? In Courts disposition in Gan v. Yap, it proceeded to differentiate the nature of attested/ordinary and holographic will as regards the admission of oral testimony Attested If attested will is lost, the subscribing witnesses are available to authenticate through oral testimony and it is hard to convince three witnesses to lie 34. Are joint wills void? Why? Yes. Art 818 provides that two or more persons cannot make a will jointly or in the same instrument, either for their reciprocal benefit or for the benefit of a third person VOID: Reciprocal wills in the same instrument and joint wills in the same instrument Joint wills are void because: i. Limitation on modes of revocation ii. Diminution of testamentary secrecy iii. Danger of undue influence iv. Danger of one testator killing another. 35. If a Filipino executes a joint will with his German spouse in Germany (where a joint will is valid), can it be probated here in the Philippines? The Filipino cannot have the will probated in the Philippines. Art 17 of the CC provides that prohibitive laws xxx that have for their object xxx public policy shall not be rendered ineffective by laws xxx in a foreign country Since joint wills are expressly declared void, it cannot be probated here. As to the German spouse, however, the will is still valid. (Art 819) 36. What are the ways to get around a joint will? i. ii. iii. Survivorship agreements Separate documents, each serving as one independent will (even if written on the same sheet) Reciprocal wills in separate instruments Holographic The only guarantee is the handwriting itself. It is the only medium of proof. If oral testimony is admitted, it can engineer fraud.

29. What does Art 811 prescribe in the probate of a holographic will as regards a witness requirement? It is necessary that at least one witnesses who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. In the absence of any competent witness referred to and if the Court deems it necessary, expert testimony may be resorted to. 30. How is genuineness of handwriting proven? i. ii. iii. iv. Witness actually saw person writing the will Witness familiar with the handwriting who can give his opinion thereon Comparison by the court of questioned handwriting and admitted genuine specimen Expert evidence

31. If the probate of a holographic will is contested, does the proponent have to produce at least 3 witnesses who know the testators handwriting? No. 3 witness provision is directory. Azoala v. Singson held: We are of the opinion that Art 811 of our CC cannot be interpreted as to require the compulsory presentation of 3 witnesses to identify the handwriting of the testator, under penalty of having the probate denied

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37. What are the 6 qualifications to be a witness to an ordinary/attested will? (Art. 820 and 821) i. ii. iii. iv. v. vi. Sound mind At least 18 years of age Not blind, deaf or dumb Able to read and write Domiciled in the Philippines Must not have been convicted of: a. Falsification of a document b. Perjury c. False testimony

42. What are the requirements in order to incorporate reference documents (e.g. inventories, books of accounts) to the will? (Art 827) i. ii. iii. iv. v. vi. Notes: The document referred to in the will must be in existence at the time of the wills execution [in existence at execution of will] The will must clearly describe and identify the same, stating among other things the pages thereof [will must identify] Document must be identified by clear and satisfactory proof as the document referred to in the will [doc must be clearly identified] Must be signed by the testator and the witnesses on every page except in the case of voluminous accounts/inventories [signed by witness+testator in every page] It must NOT make any dispositions Will must be an attested will

38. What is the effect of a witness supervening incapacity? If the witnesses attesting the execution of the will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of a will. (Art 822) 39. Can a creditor of the testator be a witness to the will? Yes. A mere charge on the estate of the testator for the payment of debts due at the time of the testators death does not prevent his creditors from being competent witnesses to his will (Art 824) 40. What is a codicil? y y y y It is a supplement of addition to a will It is made after the execution of such will It is annexed to the will, to be taken as a part of such will It either: o Adds to a disposition (e.g. Will: I leave my house to A. Codicil: I also leave the lot where the house is to A) o Explains a disposition o Alters a disposition (e.g. Will: I leave 50 hectares of my 100 hectare land to Y. Codicil: Oops. 25 hectares na lang pala)

A codicil is different from a subsequent will because a subsequent will makes independent and distinct dispositions 41. Must the codicil conform to the form of the original will? No. An attested will may have a holographic codicil and vice versa.

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43. When may a will be revoked? Testator may revoke the will at any time before his death. Any waiver or restriction of this right to revoke is void. This is because a will is essentially revocable. 44. Differentiate revocation of wills and nullity of wills (Tolentino) Revocation of a will An act of a testator Presupposes a valid act Takes place during testators lifetime Testator cannot renounce his right to revoke Nullity of a will Provided for by law Inherent in the testament Invoked after testators death by his heirs Heirs may disregard by still complying with the testamentary dispositions

N.B. the subsequent will or codicil must be probated also. (naturally) 49. What are the four ways of physically destroying the will? i. ii. iii. iv. Burning Tearing Cancelling Obliterating

50. Who may destroy the will? i. ii. The testator personally Another person acting in his presence and by his express direction

45. What are the rules as regards a revocation of a will done outside the Philippines? If testator is not domiciled in the Philippines + revocation made outside the Philippines 1. Follow the law of the place where the will was made OR 2. Follow the law of the place where the testator was domiciled at the time of revocation 1. Follow Philippine law 2. Follow the law of place of revocation 3. Follow law where will was made

51. What are the elements of a valid revocation by physical destruction? (all must concur) i. ii. iii. iv. Physical destruction itself Capacity to revoke Intent to revoke The testator must have completed everything he intended to do.

52. What is the effect of unauthorized destruction? The will may still be proven as lost or destroyed. However, this is only possible in attested wills (subscribing witnesses oral testimony required to establish due execution) 53. What is the effect of a lost attested will? Gago v. Mamuyac: where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the will was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death 54. May a revocation be implied? Yes. Subsequent wills which do not revoke the previous wills in an express manner, annul only such dispositions in the prior wills as are inconsistent with those dispositions in the later wills (Art 831)

If testator is domiciled in the Philippines + revocation made outside Philippines

46. What are the grounds for the revocation of a will? (memorize) Art 830 provides: No will shall be revoked except in the following cases: i. ii. iii. By operation of law By some will, codicil, or other writing executed as provided in case of wills By burning, tearing, cancelling or obliterating the will with intention of revoking it, by the testator himself or by some other person in his presence and by his express direction. If burned, torn, cancelled or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith IF its contents and due execution and the fact of its unauthorized destruction, cancellation or obliteration are established according the rules of court

48. What are the requisites for valid revocation by a subsequent instrument? i. ii. iii. Subsequent instrument must comply with formal requirements of a will Testator must possess testamentary capacity Instrument must contain an express revocatory clause or must be incompatible with the prior will
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55. Discuss 832 A revocation made in a subsequent will shall take effect even if the new will should become inoperative by reason of the incapacity or renunciation of the heirs, devisees or legatees designated in the will. 56. Is revocation dependent upon the acceptance or capacity of the new heirs?

56. Does a testator need to have a reason for revoking his will? GR: No. This is because wills are essentially revocable. Exception: Art 833: A revocation of a will based on a false or illegal cause is null and void Elements:

GENERALLY, no. The efficacy of the revocatory clause does not depend on the testamentary dispositions of the revoking will, unless the testator provides (see example 2) Example 1: (general rule) B executes a will wherein D was instituted as the universal heir. The next day, B executes another will, instituting E as his universal heir. B then dies and E renounces the inheritance. The first (with D as universal heir) will remains revoked even if the new will became inoperative since E renounced. The effect is the same if the E became incapacitated (insane)

i. ii. iii. iv.

The cause must be concrete and factual (not subjective) Cause must be false Testator must not know the cause is false It must appear from the will (or must be stated) that the testator is revoking it because of such false cause

57. What is the effect of a wills revocation if the will recognizes an illegitimate child? The recognition does not lose its legal effect. (Art 834) 58. What are the provisions governing republication of wills? (Art 835/836)

Example 2: dependent relative revocation B executes a will where he gives 1/8 of his estate to X and his Tagaytay lot to Y. The next day, B executes another will wherein Y was instituted as the universal heir and also providing that the revocation of the first will [express revocatory clause] is dependent on the capacity or acceptance of Y. if in this particular case, Y does not accept the institution, the revocation fails and the original will remains in force. Notes: Non-compliance with the following: i. ii. iii. iv. v. vi. vii. viii. ix. Art 804: must be in writing and executed in a language known to the testator Art 805: subscribed at the end thereof by the testator, etc etc Art 806: every will must be acknowledged before a notary public by a testator and the witnesses Art 807/808: deaf-mute or blind Art 809: bad faith, forgery, undue and improper pressure and influence in connection with imperfections in the form/language in the attestation/will Art 810: requirements of holographic wills Art 811: one witness requirement for probate of holographic will Art 812/813: additional dispositions Art 818/819: Joint wills Art 835: The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in the previous one which is void as to its form Art 836: The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil 59. When is a will void as to its form?

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60. What does the testator have to do in order to republish a will that was previously void as to its form? He has to execute a subsequent will and copy out the dispositions of the original will. Mere reference to the previous (void) will is not enough. 61. What if the testator wants to republish a will that is either a) void for a reason other than a formal defect OR b) previously revoked Testator must execute a subsequent will or codicil referring to the previous will (e.g. I revive the previous will) 62. Illustrate Art 837 Art 837 provides: If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil In 1985, X executed Will 1 In 1986, X executed Will 2, expressly revoking will 1 In 1990, X executed Will 3, expressly revoking will 2 Effect: Revocation of will 2 by will 3 does not revive will 1 unless will 3 expressly revives will 1. Note: y y Art 837 applies IF revocation of will 1 is EXPRESS (revocatory clause) Will 2 must be submitted to probate for the purpose of revoking will 1

Notes:

63. What happens when the revocation of will 1 is implied? In 1990, X executed will 1, naming Z as universal heir In 1991, X executed will 2, naming A as universal heir In 1992, X executed will 3, revoking will 2 Effect: The 1991 revocation of will 1 was implied (incompatible provisions) Hence, the revocation of will 2 by will 3 REVIVES the first will (unless will 3 is also incompatible with will 1)

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63. What are the rules governing the allowance of wills? Art 838 provides that no will shall pass any property unless it is proved and allowed in accordance with the rules of court. (basically, a will has to be probated for it to be able to pass property) 64. May a will be probated during the testators lifetime? Yes. Art 838 provides that the testator may have his own will probated by filing a petition in the court having jurisdiction for the allowance of his will. As compared to a post-mortem probate, probate during the lifetime of the testator is more advantageous because: i. Mental condition of testator can be easily determined ii. Fraud, intimidation and undue influence are minimized iii. If a will does not comply with formalities, they can still be corrected immediately iv. Opposition will be minimized 65. What is the nature of probate proceedings? Guevara v. Guevara provides: Notes: The proceeding for the probate of a will is one in rem, with notice by publication to the whole world and with personal notice to each of the known heirs, legatees and devisees of the testator xxx The due execution of the will and the fact that the testator was of sound and disposing mind and not acting under duress, menace, undue influence or fraud must be proved to the satisfaction of the court and only then may the will be legalized and given effect by means of a certificate of its allowance signed by the judge and attested by the seal of the court xxx It can be seen that the presentation of the will for probate is mandatory. 66. What is the effect of a wills allowance? An allowance of a will shall be conclusive as to its due execution (meaning the will is formally valid) The allowance is subject to the right of appeal. If the decree of probate becomes final, it is res judicata. 67. What encompasses formal validity? i. ii. iii. iv. Whether the will submitted is really is the testators last will Compliance with the prescribed formalities Testamentary capacity Due execution a. Testator is of sound and disposing mind

b. c. d. e.

Consent is not vitiated Will is genuine Testator is of age Testator is not expressly prohibited by law

68. Can a probate court pass upon the intrinsic validity of the dispositions? Yes. When the intrinsic invalidity of the dispositions can readily be seen from the will, the court can pass upon such issue. 69. What are the grounds for disallowance of wills? Art 839 F-I-F-U-S-M i. ii. iii. iv. v. vi. Formalities not complied with [formalities: 804-814, 818-819, 820-821] If testator was insane or mentally incapable of making the will at the time of its execution [insane] If executed through force, duress, fear or threats [force] If executed by undue and improper pressure and influence on the part of the beneficiary of some other person [undue influence or pressure] If signature is procured by fraud [signature fraud] If the testator acted by mistake and did not intend for the instrument he signed to be his will [mistake]

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70. What is does it mean when an heir is instituted? Art 840: An heir is instituted when a testator designates him in his will. The heir succeeds the testator in his property, transmissible rights and obligations. 71. Art 841 A will is still valid even if: i. It does not contain an institution of an heir (even if the will does not contain any disposition, it will still be formally valid as long as it complies with the requisites) ii. Testator only institutes an heir to a part of the estate (if institution does not comprise the whole estate) iii. Even if the instituted heir does not accept or is incapacitated If this is the case, the effect would be that the valid testamentary dispositions shall be complied with and intestate succession will operate as regards the remaining portion (mixed succession) 72. How much can be disposed of by will? If the testator has no compulsory heirs, he can dispose of his entire hereditary estate in favor of any part capable to succeed. However, if he has compulsory heirs, he can only dispose of the free portion because the legitime cannot be impaired. 73. What are the rules concerning designation of an heir? When institution valid:
Situation When heir is designated by his name and surname When there are two persons with the same name and the testator indicates some known circumstance to identify him Example I designate Michael Jose as heir to 1/18 of my estate Testator has two relatives, both named Fernando Pe I designate Fernando Pe, my 3 cousin, as heir to 1/24 of my estate I designate my youngest second cousin in my mothers side as heir to 1/32 of my estate Heirs name is Michael Johnston, testators best friend I designate Michael Johannson as heir to of my estate I designate A, B, C and D as my heirs. They shall all inherit in equal shares [Art 846]
rd

Disposition in favor of a definite class or group of persons Initially unknown person but subsequently, his identity is known

I designate all the mmda traffic enforcers working in Edsa to 1/8 of my estate

When institution invalid

Situation When it cannot be identified among persons having the same name and circumstances Designation of an unknown person Example Testator had many relatives named Juan Cruz, all similarly situated and testator designates a Juan Cruz to 1/8 of estate I designate as heir to of my estate Batman

74. What happens when the testator institutes some heirs individually and others collectively? Art 847 Those collectively designated will be considered individually instituted, unless a contrary intention appears. Provision gave an example: I designated as my heirs a and B and the children of C In this case, children of C presumed individually designated. 75. What happens when the testator institutes his brothers and sisters, and he has half-siblings The inheritance shall still be distributed equally unless a contrary intention appears. This only applies, however, to testamentary succession. 76. What is the effect when testator calls to the succession a person and his children? Art 849: They are deemed to have been instituted simultaneously and not successively. 77. What is the effect of a statement of a false cause for the institution of an heir? Art 850: The statement shall be considered as not written unless it appears from he will that the testator would not have made such institution had he known of the falsity of such cause. Austria v. Reyes provides: Before the institution of heirs may be annulled under Art 850, three requisites must concur: i. The cause for institution must be stated in the will ii. Cause must be shown to be false iii. It must appear on the face of the will that testator would not have made the institution if he had known of the falsity of the cause

When testator omits the name of an heir but still designates him in such a manner that there is no doubt that its still him When there is an error in the name/surname of the heir if it is possible in any other manner to identify the heir

When heirs is designated without shares

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78. Art 852 and 853 Notes: Art 852: If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or to the whole free portion, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally Situation: There is more than one instituted heir and the testator intended them to either get the whole estate or the whole free portion, but the shares assigned to them do not complete the whole estate/free portion. Art 853: If each of the instituted heirs has been given an aliquot part of the inheritance and the parts together exceed the whole inheritance or the whole free portion, as the case may be, each part shall be reduced proportionally Situation: There is more than one instituted heir and their assigned shares together exceed the whole estate or free portion, their shares shall be proportionally decreased. X/Value of estate = share of heir/wrong value that heir received; x = right share. Notes:

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Succession Quizzler (By Butch)

79. What is preterition? (memorize) 854 The preterition or 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, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. 80. Break down the provision:
Preterition or omission of one, some or all of the compulsory heirs in the direct line Compulsory heirs in direct line: Children or other descendants (in default of them, parents or ascendants) This includes illegit/legit/adopted child Surviving spouse not included. Surviving spouse can be preterited and the institution of heir would still be valid. Preterition applies w/n CH is: 1) Living at the time of execution of the will 2) Born after the execution of the will 3) Born after the execution of the will and even after testators death Institution of heir may be annulled and testamentary succession may occur, but devises and legacies are valid insofar as they do not impair the legitime

Therefore, it follows that for there to be preterition, the heir must have received nothing by way of: i. ii. iii. iv. Testamentary succession Legacy or devise Donation inter vivos Intestacy

Therefore, preterition means being completely left out of the inheritance. 82. What if the preterited or omitted heir 1) dies before the testator 2) is unworthy to succeed the testator? Issue of preterition becomes moot. However, should the heir have a descendant who is also preterited, the effects of preterition will arise. Balane example: X has two legitimate children, A and B. X makes a will which totally omits A. A dies before X but leaves a legitimate child, A-1, who in this case, is entitled to succeed X by representation. The institution of heir will be annulled because A-1 was preterited. 83. Differentiate preterition from effective disinheritance
Disinheritance Express deprivation of legitime Always voluntary Preterition Implied deprivation of legitime May also be voluntary but is presumed to be involuntary (as its an omission to mention as an heir or though mentioned, isnt instituted as an heir) Presumed by law to be a mere oversight Compulsory heir is merely restored to his legitime

Whether living at the time of the execution of the will or born subsequently, even after the testators death (better definition)

Devises and legacies shall be valid insofar as they are not inofficious

81. When is there no preterition?

Legal cause is present Situation If the compulsory heir in question is instituted in the will but the portion given to him by the will is less than his legitime Example X has one legitimate child (A) and a spouse (Y) In this case, As of the Xs estate. If in Xs will, A is designated only to of the estate, there is still no preterition. His remedy is to compel the completion of his legitime. X has his child as his only compulsory heir. In his will, he devises her a lot in Tagaytay. There is no preterition. Childs remedy is also completion of her legitime. There is no preterition because a donation inter vivos is treated as advance in the legitime There is still no preterition because omitted heir would still receive something through intestate succession. Even a compulsory heir may be totally excluded

If the compulsory heir is given a legacy or devise in the will

If the compulsory heir is omitted from the will but was previously given a donation inter vivos If the heir is omitted from the will and not given a donation inter vivos

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84. How to properly apply 855? 855 should be paraphrased as follows: The share of the compulsory heir omitted in a a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, as much as may be necessary must be taken proportionally from the shares of the other heirs given to them by will This provision basically talks about completion of a CHs legitime. 85. Explain Art 856 and 857 Art 856 provides: A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance shall transmit no right to his own heirs except in cases expressly provided for Balane provides a complete statement of the rule (memorize): An heir, whether compulsory, voluntary or legal, transmits nothing to his heirs in case of predecease, incapacity, renunciation or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply TN transmits nothing, R representation rules apply, NR no representation
Kind of heir Compulsory Voluntary If heir predeceases testator TN, R TN, NR If heir incapacitated TN, R TN, NR If heir renounces TN, NR TN, NR If heir is disinherited TN, R N/A (because DH is for CH/LH) N/A

86. What does substitution mean? Substitution is the appointment of another heir so that he may enter into the inheritance in default of or subsequent to the heir originally instituted. 87. What are the types of substitution? i. ii. iii. iv. Simple or common (859) Brief or compendious (860) Reciprocal (861) Fideicommissary (863)

88. Simple substitution: (A testator may designate one or more persons to substitute the heir or heirs instituted in case such heir predeceases the testator, is incapacitated or renounces the inheritance) Causes for simple substitution: Cause
First heir predeceases testator First heir renounces First heir is incapacitated If testator does not provide for a cause, all causes will be covered (default)

Example
I institute X as heir to of my estate. If he dies before me, I institute Y in his place. I institute X as heir to of my estate. If he does not accept, I institute Y in his place I institute X as heir to 2/3 of my estate. If he cannot accept, I institute Y in his place. I institute X as heir to 1/3 of my estate and Y as his substitute.

89. Brief or compendious In a nutshell, this is a type of substitution wherein two or more persons are substituted for one (2> for 1: BRIEF) and one person for two or more heirs (1 for 2>: COMPENDIOUS) In cases of compendious substitutions, the 2 or more originally instituted heirs must all default. In this case, substitution can only take place when all the original heirs are disqualified. As an exception, the testator may provide that the death of one of the original heirs will make the substitution effective. 90. Reciprocal Substitutions Art 861 provides: if heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces or is incapacitated unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution.
16

Legal

TN, R

TN, R

TN, NR

Notes:

Succession Quizzler (By Butch)

1st sentence example: A instituted to 1/3 of the estate. B instituted to of the estate. Testator provides for their reciprocal substitution. If for example A predeceases the testator, B shall acquire As 1/3 share, in addition to his share. 2 sentence example: A, B and C are instituted by D. A (1/2), B (1/5) C (1/10) the instituted heirs in the case are made substitutes of one another as provided for by the testator. If A predeceases D, his share will go to B and C in proportion to their current shares. Same goes if B/C predecease. 91. Art 862 The substitute shall be subject to the same charges and conditions imposed upon the instituted heir unless testator provides the contrary or the charges and conditions are personally applicable only to the instituted heir. Notes:
nd

92. What is a fideicommissary substitution? (memorize) Art 863: A fideicommissary substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance, shall be valid and shall take effect, provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator 93. What are the elements of a FC? (memorize) i. ii. iii. iv. v. A first heir who takes the property upon the testators death A second heir (fideicommissary) who takes the property subsequently from the fiduciary The second heir must be one degree from the first heir The first heir is obliged to preserve the property and transmit it after the lapse of the period to the fideicommissary heir [obligation must be absolute Both heirs (first and second) must be living and qualified to succeed at the time of the testators death

94. What is the mandatory requisite of the degree between first and second heir? The second heir must be either a child or a parent of the first heir. 95. How long can the first heir hold the property? The primary rule is that the fiduciary will hold the property as per the testators indicated period. The secondary rule is that if the testator did not indicate a period, the first heir can hold the property as long as he lives. However, as aforesaid, first heir cannot dispose of the held property as he has the absolute obligation to transmit it to the second heir. 96. How are FCs given effect? Every FC substitution must be expressly made in order that it may be valid (e.g. use the word fideicommissary or impose absolute obligation on first heir to preserve and transmit to a second heir). The fiduciary shall be obliged to deliver the inheritance to the second heir, without other deductions than those which arise from legitimate expenses, credits and improvements unless the testator provides otherwise.

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97. Does the second heir have to survive the first heir? No. The second heir does not have to live past the first heir for the substitution to be effective since his right vests from the time of the testators death. The second heirs heirs take his place. 98. Prohibited instances under 867: The following shall not take effect: i. ii. iii. FC substitutions which are not made expressly (not calling it FC or not imposing the absolute obligation to preserve and transmit) Provision which contains a perpetual prohibition to alienate, and even a temporary one beyond the limit set forth in 863 (beyond FHs lifetime/ if theres no FC: 20 years) Those which impose upon the heir the obligation of paying to various persons successively, beyond the limit prescribed in 863 (beyond FHs lifetime), a certain income or pension there can only be two beneficiaries of the pension (FH then the SH) Those which leave to a person the whole or part of the hereditary property so that he may invest the property according to the secret instructions given to him by the testator

101. Can a testator prohibit the disposition of his estate? Yes, but only for 20 years.

iv.

99. What is the effect of the nullity of the FC substitution? The institution of the first heir simply becomes pure. However, if the institution of the FH is void, the FC substitute (SH), should still be considered instituted. 100. Art 869 A provision whereby the testator leaves to a person the whole or part of the inheritance and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of 863 apply. This provision means that if the testator institutes successive usufructuaries (one after the other), there can only be two usufructs and as to the two of them, the requisites of Art 863 must be present. Example: A in his will, gave B the naked ownership of his land and gave C the usufruct over the same. Successive usufructs: A in his will, gave B naked ownership of his house to B. He also gave the usufruct of the house to C first, then to D afterwards. This would mean that C first gets the usufruct, then after C dies, usufruct goes to D. The disposition of the usufruct is valid IF: 1) D is a first degree relative of C (parent or child) and 2) both C and D are alive at the time A dies.
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102. What are the three kinds of dispositions? v. i. ii. iii. Conditional dispositions (made to depend on a future and uncertain event) Dispositions with a term(a day certain for its fulfillment) Dispositions with a mode Condition dependent on a testamentary disposition: Art 875 provides that any testamentary disposition made on the condition that the heir shall also make a provision in his will in favor of the testator or any other person is invalid. Example: I hereby institute Y, my best friend, as heir to 1/8 of my estate if he institutes his son as heir to his 1/9 of his estate vi. Potestative conditions (one the fulfillment of which depends purely upon the heir) Art 879 Rule 1: Any purely potestative condition imposed upon the heir must be fulfilled by him as soon as he learns of the testators death Example: A instituted B as his heir on the condition that he learn basketball. Once A dies, B must learn how to play basketball. Rule 2: Rule 1 does not apply if when he condition, already complied with, cannot be fulfilled again. Example: From the example, it can be seen that if B already knew how to play basketball, his institution stands. Rule 3: In case of a negative potestative condition, the heir must give a security to guarantee the return of the property in case he contravenes the condition Example: X institutes Y as his heir as long as he does not go to Hong Kong. When X dies and Y still has not yet gone to Hong Kong, he gets instituted. However, if he goes to Hong Kong subsequently, he must return the value of the property he received by virtue of the institution vii. Casual/Mixed Condition (one that depends on the will of a third person or on chance) Casual: depends on chance and/or the will of a third person Mixed: partly both upon the will of their himself and upon chance and/or the will of a third person Rule 1: Art 877: If the condition is casual, it shall be sufficient if it happened or be fulfilled at any time before or after the death of the testator, unless he has provided otherwise.

103. Discuss conditional dispositions i. ii. iii. FIRST RULE: Conditions can only be imposed on the free portion as it cannot burden the legitime. Basic Condition: I hereby give X 1/5 of my estate if his father becomes a lawyer Impossible/Illegal Conditions: Example: I hereby institute A as my universal heir if he can make my dead grandfather live again Effect: Considered void and unwritten. A still considered universal heir. iv. Condition prohibiting marriage: Who can impose an absolute condition against contracting a first marriage? (e.g. I hereby institute X as heir to 1/5 of my estate if she never gets married) No one. Condition considered as not imposed. Who can impose an absolute condition against contracting a subsequent marriage? (e.g. I hereby institute Y, my husband, to 1/8 of my estate as long as he does not re-marry forever) 1) The deceased spouse (on the surviving spouse) 2) Ascendants or descendants of the decease spouse (on the surviving spouse) Art 874 2nd paragraph: Nevertheless, the right of usufruct, or an allowance, or some personal prestation may be devised or bequeathed to any person for the time during which he or she should remain unmarried or in widowhood This provision means that testator can provide that the moment the heir, legatee, devisee gets married or re-marries, the usufruct, allowance or prestation may be stopped. This provision also means that a testator can give his heir the right to the usufruct/allowance/personal prestation as long as this heir remains unmarried. As soon as B marries, however, his right over the usufruct/allowance/personal prestation would cease to exist.

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Rule 2: 877: If the condition already existed or the condition has already been fulfilled at the time the will was executed and the testator did not know of the existence/fulfillment, the condition shall be deemed complied with. Rule 3: 877: If the testator knew that the condition already existed or the condition had already been fulfilled, the condition shall be considered fulfilled ONLY when it is of such nature that it can no longer exist or be complied with again. Example: Fez in his will, gave Donna a legacy of 20k provided that Foreman wins the lotto. IF Fez was unaware, at the time of making the will, that Foreman already won the lotto, the condition is deemed fulfilled. (Rule 2) IF Fez was aware at the time of making the will that Foreman already won the lotto, the condition is not fulfilled unless Foreman wins the lotto again. (Rule 3) IF Fez was aware at the time of making the will that Foreman already won the lotto and the lotto becomes illegal, the condition is fulfilled because it can no longer be fulfilled. (Rule 3) Applying rules to a mixed condition: Example: A gives B a legacy in his will provided that B becomes a lawyer. This condition can be fulfilled either before or after As death. If B is already a lawyer at the time of the making of the will and A did not know this, the condition is deemed complied with (Rule 2) If B is already a lawyer and A knew this, condition is deemed complied with because it can no longer be complied with again as he was already a lawyer (Rule 3) Rule on substantial compliance of mixed/casual conditions: If the person interested in the condition should prevent its fulfillment, without the fault of the heir, the condition shall be deemed complied with. Rule applicable only in mixed conditions wherein a third party interested in the conditions fulfillment is involved.

viii.

Suspensive Conditions (Condition must be fulfilled in order for the heir to be instituted and get the disposition) Art 880 provides that if the heir is instituted under a suspensive condition, the estate shall be placed under the administration until: i) The condition is fulfilled ii) It becomes certain that the condition cannot be fulfilled. Example: In 1995, A instituted B as heir provided B passes the bar in 2002.A dies on 1999. From 1999-2002, the estate shall be placed under administration. When B passes the bar, he becomes entitled to the property. When it becomes certain that B wont ever pass the bar (flunk rule), the intestate heir or a secondary heir if present, would be entitled to the property.

104. What is a caucion mauciana? This is the bond or security required to be given in favor of those who would get the property if the condition is not complied with (intestate heir/substitute) It is required in the following: i. Art 879: In negative potestative conditions (heir obliged not to do or give something) property can be taken by heir provided he gives the security ii. Art 882: Modal Institutions modally instituted heir can get the property at once provided he gives security that he will comply with testators wishes iii. Art 885: Institutions with a term legal heir can enter into possession of the property before the term arrives provided he gives security 105. Dispositions with a term: i. ii. Rule 1: (Art 878): In dispositions with a term, the heirs right vests upon the testators death Rule 2: The designation of the day or time when the effects of the institution of an heir shall commence or cease shall be valid. In both cases, the legal heir shall be considered called to the succession until the arrival of the period or its expiration. But in the first case, he shall not enter into possession of the property until after having given sufficient security, with the intervention of the instituted heir. Suspensive Term: Effects begin from a certain day Before the arrival of the term, the property should first be delivered to the intestate heirs. They have to post sufficient security. Resolutory term: Effect cease on a certain day Before the arrival of the term, the property should be delivered to the instituted heir. When term arrives, property should be turned back to instituted heirs (no security)
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Ex die in diem: From a certain day to a certain day 106. Modal dispositions: Art 882 provides: The statement of the object of the institution or the application of the property left by the testator, or the charge imposed on him, shall not be considered a condition unless it appears that such was his intention. That which has been left in his manner may be claimed at once provided that the instituted heir or his heirs give security for compliance with the wishes of the testator and for the return of anything he or they may receive, together with its fruits and interests, if he or they should disregards this obligation. In fine, a modal institution takes effect when: i. ii. iii. Object of the institution is provided: I institute A as my heir to give him enough money to pursue his dreams of being an artist Application of the property left by the testator is provided: I institute B as my heir in order for him to apply the properties of my estate to the building of an apartment building The charge is imposed by the testator: I institute A as my heir. He will devote 10% of the annual income of my buildings for erecting a law school.

Notes:

107. What is a mode? A mode is an obligation placed upon an heir without suspending the effectivity of the institution. 108. Differentiate modal institution, conditional institution and institution with a term Modal
A mode imposes an obligation upon the heir or legatee but it does not affect the efficacy of his rights to the succession Obligates the heir but inheritance is SURE The inheritance can be immediately be demanded, provided a security is given

Conditional
The condition must happen or be fulfilled for the heir to be entitled to succeed Suspends the inheritance BUT UNSURE Even if the heir wants to give security, he will not be allowed to demand his inheritance as long as the condition has not been fulfilled.

Term
The period, which must necessarily arrive, should arrive for the heir to be entitled to succeed Suspends the inheritance but SURE The legal heir must give security in order to enter into possession of property before term arrives

109. What if the instituted heir does not follow the wishes of the testator? The instituted heir is supposed to forfeit the inheritance and forthwith return anything he may have received together with these fruits.
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110. What is the legitime (memorize) Legitime is that part of the testators property which he cannot dispose of because the law has reserved it for certain heirs who are therefore called compulsory heirs

viii.

Illegitimate parents: The illegitimate ascending line includes ONLY illegitimate parents excluded by legitimate children and illegitimate children

Notes: 111. Who are compulsory heirs? (memorize) i. ii. iii. iv. v. Legitimate children and descendants, with respect to their legitimate parents and ascendants In default of the foregoing, legitimate parents and ascendants with respect to their legitimate children and descendants The widow or widower Acknowledged natural children and natural children by legal fiction Other illegitimate children

Compulsory heirs mentioned in 3,4,5 are not excluded by those in 1 and 2. Neither do they exclude one another. In case of illegitimate children, their filiation must be duly proved. 112. Primary, secondary and concurring CH Primary: Those in #1, (legit children and/or descendands) Secondary: Those in #2 (legit parents and/or ascendants and illegitimate parents) Secondary because they receive legitimes if the testator has no legit children and/or descendants Concurring: Those in #3,4,5 (surviving spouse, illegitimate children and/or descendants) Concurring because they succeed as compulsory heirs together with primary/secondary. 113. Notes on legitimes i. ii. iii. iv. v. vi. vii. Legitimate Children: Adopted children are considered legitimate children Legitimate Descendants: If all qualified, children will exclude decedents grandchildren. Grandchildren become primary CH only when all the legit children are disqualified Legitimate parents: Adoptive parents considered as legitimate parents. Adoptive parent replaces the biological parents Legitimate ascendants: When testators parents are disqualified, legitimate ascendants (grandparents) will become CH Surviving spouse: surviving spouse of decedent-testator Illegitimate children Illegitimate Descendants: If all qualified, illegitimate children will exclude decedents illegitimate grandchildren

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114. Combinations SURVIVING RELATIVES Legitimate children alone 1 legitimate spouse child surviving LEGITIMATE CHILDREN &
DESCENDANTS

SURVIVING SPOUSE

ILLEGITIMATE CHILDREN

LEGITIMATE PARENTS &

ASCENDANTS

ILLEGITIMATE

PARENTS

(divided by the # of children) (divided by no. of children) (divided by no. of children) Same as the share @ legit child of the share of @ legit child of the share of @ legit child of the share of @ legit child

Legitimate children Surviving spouse Legitimate children Illegitimate children 1 legitimate child surviving spouse illegitimate children 2 or more legitimate children surviving spouse Illegitimate children Legitimate parents alone Legitimate parents Illegitimate children Legitimate parents Surviving spouse Legitimate parents Surviving spouse Illegitimate children Illegitimate children alone Illegitimate children Surviving spouse Surviving spouse alone

(divided by no. of children)

Same as the share of @ legit child

1/8

(divided by no. of children) 1/3 or 1/3 if marriage in articulo mortis 1/3 (divided by no. of children)

Illegitimate parents alone Illegitimate parents Surviving spouse

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Notes on legitimes:
1. 2. 3. 4. Legitimate children always get 1/2 of the estate as legitime. This is true even if there is only one child. Legitimate parents as secondary compulsory heirs also always get 1/2 of the estate as their legitime, which is true even if only one legitmate parent survives. There is no representation in the ascending line. The legitime of the surviving spouse must be paid first out of the free portion; then give the illegitimate children their legitime. Ergo, if there are many illegitimate children, each of them might not get 1/2 of the share of a legitimate child. There is also representation of illegitimate children. If the testator has no legitimate parents but is survived by ascendants of equal degree, the legitime shall be divided equally between paternal and maternal lines. If the ascendants are of different degrees, the ones nearest in degree get the entire legitime [Art. 889].

Art. 889. The legitime of legitimate parents or ascendants consists of one-half of the hereditary estates of their children and descendants. The children or descendants may freely dispose of the other half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided. (809a)

5.

6.

Codal provisions on legitime: Art. 888. The legitime of legitimate children and descendants consists of onehalf of the hereditary estate of the father and of the mother. The latter may freely dispose of the remaining half, subject to the rights of illegitimate children and of the surviving spouse as hereinafter provided.(808a)

Art. 890. The legitime reserved for the legitimate parents shall be divided between them equally; if one of the parents should have died, the whole shall pass to the survivor. If the testator leaves neither father nor mother, but is survived by ascendants of equal degree of the paternal and maternal lines, the legitime shall be divided equally between both lines. If the ascendants should be of different degrees, it shall pertain entirely to the ones nearest in degree of either line. (810)

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Art. 892. If only one legitimate child or descendant of the deceased survives, the widow or widower shall be entitled to one-fourth of the hereditary estate. In case of a legal separation, the surviving spouse may inherit if it was the deceased who had given cause for the same. If there are two or more legitimate children or descendants, the surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children or descendants. In both cases, the legitime of the surviving spouse shall be taken from the portion that can be freely disposed of by the testator. (834a)

Art. 894. If the testator leaves illegitimate children, the surviving spouse shall be entitled to one-third of the hereditary estate of the deceased and the illegitimate children to another third. The remaining third shall be at the free disposal of the testator. (n)

Art. 895. The legitime of each of the acknowledged natural children and each of the natural children by legal fiction shall consist of one-half of the legitime of each of the legitimate children or descendants. The legitime of an illegitimate child who is neither an acknowledged natural, nor a natural child by legal fiction, shall be equal in every case to four-fifths of the legitime of an acknowledged natural child. Art. 893. If the testator leaves no legitimate descendants, but leaves legitimate ascendants, the surviving spouse shall have a right to one-fourth of the hereditary estate. This fourth shall be taken from the free portion of the estate. (836a) The legitime of the illegitimate children shall be taken from the portion of the estate at the free disposal of the testator, provided that in no case shall the total legitime of such illegitimate children exceed that free portion, and that the legitime of the surviving spouse must first be fully satisfied. (840a) Possibility of reduction

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Art. 896. Illegitimate children who may survive with legitimate parents or ascendants of the deceased shall be entitled to one-fourth of the hereditary estate to be taken from the portion at the free disposal of the testator. (841a) Art. 897. When the widow or widower survives with legitimate children or descendants, and acknowledged natural children, or natural children by legal fiction, such surviving spouse shall be entitled to a portion equal to the legitime of each of the legitimate children which must be taken from that part of the estate which the testator can freely dispose of. (n)

Art. 899. When the widow or widower survives with legitimate parents or ascendants and with illegitimate children, such surviving spouse shall be entitled to one-eighth of the hereditary estate of the deceased which must be taken from the free portion, and the illegitimate children shall be entitled to onefourth of the estate which shall be taken also from the disposable portion. The testator may freely dispose of the remaining one-eighth of the estate. (n)

Art. 900. If the only survivor is the widow or widower, she or he shall be entitled to one-half of the hereditary estate of the deceased spouse, and the testator may freely dispose of the other half. (837a) Art. 898. If the widow or widower survives with legitimate children or descendants, and with illegitimate children other than acknowledged natural, or natural children by legal fiction, the share of the surviving spouse shall be the same as that provided in the preceding article. (n) If the marriage between the surviving spouse and the testator was solemnized in articulo mortis, and the testator died within three months from the time of the marriage, the legitime of the surviving spouse as the sole heir shall be onethird of the hereditary estate, except when they have been living as husband and wife for more than five years. In the latter case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. (n)

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Art. 901. When the testator dies leaving illegitimate children and no other compulsory heirs, such illegitimate children shall have a right to one-half of the hereditary estate of the deceased. The other half shall be at the free disposal of the testator. (842a)

115. What is the reserva troncal? (memorize) Art 891: The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of the relatives who are within the third degree and who belong to the line from which the said property came. 116. What are the requisites of the reserva troncal? i. ii. iii. iv. The property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous title [transmission by donation or succession by any kind] Descendant died without legitimate issue (single) Property is inherited by a descendant by operation of law [transmission limited succession by legitime or intestacy and not testamentary] That there are relatives within the third degree [from Prepositus] belonging to the line from which the said property came.

117. What are the three transfers that are involved in a reserva troncal Art. 902. The rights of illegitimate children set forth in the preceding articles are transmitted upon their death to their descendants, whether legitimate or illegitimate. (843a) Art. 903. The legitime of the parents who have an illegitimate child, when such child leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. (n) i. ii. iii. FIRST: by gratuitous title, from a person to his descendant, brother or sister SECOND: by operation of law, from the transferee in the first transfer to another ascendant. This creates the reserva rd THIRD: From transferee in the second transfer to the relatives within the 3 degree

118. Who are the parties involved? i. ii. iii. iv. Origin: transferor in the first transfer Prepositus: the first transferee (descendant, brother or sister of origin) Reservor: ascendant obliged to reserve Reservee: relatives benefited

119. What are the options of the prepositus to prevent the reserva? i. ii. iii. Substitute or alienate the property Bequeath or devise it to the potential reservista Partitioning the property as assign it to parties other than the reservista

120. What are the rights of the reservor? i. ii. iii. Ownership subject to a resolutory condition, which is the existence of reserves at the time of reservors death This right of ownership is alienable but subject to the same resolutory condition The right of reservoir is registrable
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121. What are the rights of the reservees? i. ii. iii. Right of expectancy Right subject to suspensive condition (if reservees survive the reservoir) Right is registrable

Notes:

122. How is the reserva troncal extinguished? i. ii. iii. iv. v. vi. Death of reservor Death of all reservees If all entitled reservees renounce and all parties in interest accept If reserved property is totally lost by fortuitous event When reservees acquire the reservors right [merger/confusion] By prescription, when reservor holds the property adversely against reservee

123. Explain reserva maxima or reserva minima A problem arises when two circumstances occur: i. Prep makes a will instituting the reservee-ascendant to a whole or a part of the free portion ii. There is left in preps estate, upon his death, in addition to the reserved property, property not reservable Reserva maxima: As much as potentially reservable property must be deemed included in the part that passes by operation of law Reserva minima: Every single property in preps estate must be deemed to pass, partly by will and partly by operation of law Example: A son received from his mother 200,000 by virtue of a will. The son had properties amounting to 400,000. When the son died without issue, he left the will, giving all his estate [600k] to his father. How much is the reservable property? In this case, father received 300k as his legitime and 300k as voluntary heir. MAXIMA: reservable property is 100k, meaning the property includes all that can be included in the half constituting the legitime of the reservor [father] MINIMA: the reservable property is only 200k. This is based on the fact that half of the 200k received from the origin [mother] was given to the father as legitime/operation of law. MANRESA: Follow Minima

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