Wills and Succession Pre-Bar Review Notes By: Atty. Leilanie C. Yangyang-Espejo
WHAT IS THE MEANING OF SUCCESSION? Article 774. 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. (n) IS SUCCESSION AN ORIGINAL MODE OR A DERIVATIVE MODE OF ACQUISITION?
CAN THE HUMAN BODY/ORGAN BE DISPOSED OF IN THE WILL? Human Corpse is not a property, and it cannot be disposed by virtue of will. But human organs can be donated or be disposed of in a will as governed by R.A. 7170 Organ Donation Act of 1991.
It is a derivative mode of acquisition based on Article 712 of the New Civil Code. C ode. Article 712. 712 . Ownership is acquired by occupation and by intellectual creation. Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and intestate succession, and in consequence of certain contracts, by tradition. They may also be acquired by means of prescription. (609a) WHAT ARE THE SUBJECTS OF SUCCESSION? (Transmissible property, rights and obligations) A. PROPERTY - may refer to real or personal, tangible or intangible property (See Articles 414-416, Civil Code for definitions.) However, it is subject to the universal requirement that the object of any act or contract must be LICIT. Property is considered licit if it is: 1. Not outside the commerce of men; 2. Not contrary to law, morals, good customs, public order or public policy 3. Transmissible; 4. Not impossible.
Property is within the commerce of man if it can be lawfully made subject to jus disponendi or the right to dispose. It must not be res nullius or res communes. It must not be an object that is prohibited by law.
Under R.A. 7170, however, the recipients and the purposes for the legacy are limited. Sec. 6 provides;
Section 6. Persons Who May Become Legatees or Donees – The following persons may become legatees or donees of human bodies or parts thereof for any of the purposes stated hereunder. (a) Any hospital, physician or surgeon - For medical or dental education, research, advancement of medical or dental science, therapy or transplantation. transplantation. (b) Any accredited medical or dental school, college or university – For education, research, advancement of medical or dental science or therapy; (c) Any organ bank storage facility – For medical or dental education, research, therapy or transplantation; and (d) Any specified individual – For For therapy or transplantation needed by him
Under R.A. 7170, prior probate of the will is not required for the legacy of the organ to be given effect. If the will is not probated or if declared invalid, the legacy, to the extent that it was executed in good faith, is nevertheless valid and effective.
WHAT IS THE CONCEPT OF “AFTER ACQUIRED PROPERTIES” IN SUCCESSION?
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-
-
Under Article 718 after the death of the decedent, the heir acquires the inherited property including all accessories and accessions accruing thereto from the moment of death. These accessions or income for the properties accruing after death actually belong to the heir not as an heir but as an owner as incidents of ownership. On the otherhand, with respect to properties acquired by the testator after the execution of the will up to the moment before death, Article 793 provides as a general rule that only those properties owned and possessed at the time the will is made are included. Properties acquired after the making of the will shall not be included in the legacy or devise. Exceptions: When the testator expressly provides in his will that properties acquired after the will is made shall be included in the inheritance. Other exception are Art. 836 and 930 of the New Civil Code.
Article 836. The 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n) Article 930. The legacy or devise of a thing belonging to another person is void, if the testator erroneously believed that the thing pertained to him. But if the thing bequeathed, though not belonging to the testator when he made the will, afterwards becomes his, by whatever title, the disposition shall take effect. (862a) B. RIGHTS - refer to transmissible rights. Purely personal rights generally cannot be transmitted because they are extinguished by death. As a general rule, patrimonial rights are transmissible. Great Pacific Life Assurance Corp v. CA [G.R. No. 113899, October 13, 1999] FACTS: A contract of group life insurance was executed between Grepalife and
DBP. Grepalife agreed to insure the lives of eligible housing loan mortgagors of DBP. Dr. Wilfredo Leuterio filed a case against Grepalife for recovery of insurance proceeds. HELD: A policy of insurance upon life or health may pass by transfer, will or succession to any person, whether he has an insurable interest or not and such person may recover it whatever the insured might have recovered, the widow of the decedent Dr. Leuterio may file the suit against the insurer, Grepalife.
1. 2.
3.
4. 5.
However, by way of exception, there are also patrimonial rights that are extinguished by death such as: When provided in the contract that the right is extinguished by death; Usufruct as a general rule because it is extinguished by death Under Article 603 of NCC; Agency because the contract is extinguished by death under Article 1919 NCC; Right to become a partner in partnership (Article 1830) Right to annuity (Article 2027)
No annuity shall be claimed without first proving the existence of the person upon whose life the annuity is constituted. (1808) 6. Right to revoke donation by reason of ingratitude; 7. Commodatum is purely personal in character. Consequently, the death of either the bailor or the bailee extinguishes the contract (Article 1939); and 8. A deposit is extinguished, in case of a gratuitous deposit, upon hte death of either the depositor or the depositary (Article 1995). C. OBLIGATIONS – As a general obligations are transmissible.
rule,
Liu vs. Loy [G.R. No. 145982, September 13, 2004]
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A prior contract to sell made by the decedent during his lifetime prevails over a subsequent contract of sale made by the administrator without probate court approval. It is immaterial if the prior contract is a mere contract to sell and does not immediately convey ownership. Frank Liu‟s contract to sell became valid and effective upon its execution and bound the estate to convey the property upon full payment of the consideration. Alvarez vs. IAC [G.R. No. No. 68053, May 7,1990] 7,1990] Teodora Yanes and the children of her brother Rufino, namely, Estellita, Iluminado and Jesus, filed a complaint against Fortunato Santiago, Arsenia Vda. De Fuentebella, Alvarez and the Register of Deeds of Negros Occidental for the return of the ownership and possession of Lots 773 and 823. They also prayed that an accounting of the produce of the land and that the share or money equivalent due the plaintiffs be delivered to them and that defendants be ordered to pay plaintiffs P 500.00 as damages in the form of attorney‟s fees. During the pendency in court of said case or on November 13, 1961. Alvarez sold Lots 773-A, 773-B to Dr. Rodolfo Siason. Alvarez died but he was adjudged to pay the monetary value of the properties to Teodora Yanes and the children of her brother Rufino, namely, Estelita, Iluminado and Jesus. The heirs of Alvarez complained that the liability arising for the sale of Lots No. 773-A and 773-B made by Rosendo Alvarez to Dr. Rodolfo Siason should be the sole liability of the late Rosendo Alvarez or of his estate, after his death. HELD: The doctrine obtaining in this jurisdiction is non the general transmissibility of the rights and obligations of the deceased to his legitimate children and heirs. The binding effect of contracts upon the heirs of the deceased party is not altered by the provision of our Rules of Court that money debts of a deceased must be liquidated and paid from his estate before the residue is distributed among said heirs (Rule 89). The reason is that whatever payment is thus made from the state is ultimate a payment by the heirs or
distributees, since the amount of the paid claim in fact diminishes or reduces the shares that the heirs would have been entitled to receive. Under our law, therefore, the general rule is that a party‟s contractual rights and obligations are transmissible to the successors. The rule is a consequence of the progressive „depersonalization‟ of patrimonial rights and duties that, has characterized the history of these institutions. From the Roman concept of a relation from person to person, the obligation has evolved into a relation from patrimony to patrimony with the persons occupying only a representative position, barring those rare cases where the obligation is strictly personal. Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal consequences consequences of their father‟s transaction, which gave rise to the present claim for damages. That petitioners did not inherit the property involved herein is of no moment because by legal fiction, the monetary equivalent thereof devolved into the mass of their father‟s father‟s hereditary estate and we have ruled that the hereditary assets are always liable in their totality for the payment of the debts of the estate. It must, however, be made clear that petitioners are liable only to the extent of the value of their inheritance.
1. 2. 3.
4. 5.
Exceptions to the general rule that obligations are transmissible are: Purely personal obligations (e.g. marital obligations); Obligations made intransmissible by contract between the parties; The obligation to pay taxes. Note that tax liability is properly a claim against the estate; Criminal liability; When a piece of work has been entrusted to a person by reason of his personal qualifications, the contract is rescinded upon his death. In this case, the proprietor shall pay the heirs of the contractor in proportion to the price agreed upon, the value of the part of the work done, and of the materials prepared, provided the latter yield him some benefit (Article 1726)
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6. Support.
action of Sofia and Salvador Aldon barred by the statute of limitations?
WHAT TRIGGERS THE LAW ON SUCCESSION?
Death opens succession. There can be no transmission of properties, rights and obligations by way of succession without death. Prior to death, the heirs only have an inchoate right or an expectancy.
As to the second question, the children‟s cause of action accrued from the death of their father in 1959 and they had thirty years to instate it (Art. 1141 Civil Code.) they filed action in 1976 which is well within the period.
Upon the death of the decedent, the rights of the heirs become vested.
Felipe vs. Heirs of Aldon [February 16, 1983] Gimena, the wife, sold lands belonging to the conjugal partnership without the consent of the husband. The voidable contract of Gimena was subject to annulment by her husband only during the marriage because he was the victim who had an interest in the contract. Gimena, who was the party responsible for the defect, could not ask for its annulment. Their children could not likewise seek the annulment of the contract while the marriage subsisted because they merely had an inchoate right to the lands sold. The termination of the marriage and the dissolution of the conjugal partnership by the death of Maximo Aldon did not improve the situation of Gimena. What she could not do during the marriage, she could not do thereafter. The case of Sofia and Salvador Aldon is different. After the death of Maximo they acquired the right to question the defective contract insolfar as it deprived them of hteir hereditary rights in their father‟s share in the lands. The father‟s share is one half of the lands and their share is two-thirds thereof, one-third pertaining to the widow. The petitioners have been in possession of the lands since 1951. It was only in 1976 when the respondents filed action to recover the lands. In the meantime, Maximo Aldon died. Two questions come to mind namely: (1) Have the petitioners acquired the lands by acquisitive prescription? (2) Is the right of
Emnace v. CA [370 SCRA 431), November 23, 2001] Emnace, Tabanao and Divinigracia were partners in a business concern known as Ma. Nelma Fishing Industry. Sometime in January of 1986, they decided to dissolve their partnership and executed an agreement of partition and distribution of the partnership properties among them, consequent to Divinagracia‟s withdrawal from the partnership. Throughout the existence of the partnership, and even after Tabanao‟s demise, Emnace petitioner failed to submit to Tabanao‟s heirs any statement of assets and liabilities of the partnership, and to render an accounting of the partnership‟s finances, and also reneged on his promise to turn over to Tabanao‟s heirs the deceased‟ share in the total assets of the partnership. Thus, the heirs of Tabanao sued Emnace. Emnace contended that the surviving spouse of Vicente Tabanao has no legal capacity to sue since she was never appointed as administratrix or executrix of his estate. Held: The surviving spouse does not need to be appointed as executrix or administratrix of the estate before she can file the action. She and her children are complainants in their own right as successors of Vicente Tabanao. From the very moment of Vicente Tabanao‟s death, his rights insofar as the partnership was concerned were transmitted to his heirs, for rights to the succession are transmitted from the moment of death of the decedent. Whatever claims and rights Vicente Tabanao had against the partnership and petitioner were transmitted to
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respondents by operation of law, more particularly by succession, which 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. WHAT IS A PERSON CONSIDERED DEAD FOR THE PURPOSE OF SUCCESSION? Death may either be: 1. Actual Death 2. Presumed Death a. Ordinary presumption – after 10 years or 5 years if the person disappeared after the age of 75 years old (Article 390, NCC) b. Qualified or extraordinary presumption – after 4 years if the disappearance was under danger of death (Article 391, NCC) When is the moment of death counted? (a) Ordinary presumption – after 5 or 10 years (b) Extraordinary presumption from the date of disappearance.
However, the rule on presumptions should yield to the rule on preponderance of evidence. If there is evidence pointing to the fact that the person is alive, then he cannot be presumed dead despite the fact that he has not been heard of. Or if there is evidence that the person is really dead, then there is no need to wait for the periods under Articles 390 and 391 to lapse before a person may be declared dead.
Eastern v. Lucero [124 SCRA 326] Lucero, Jr. was appointed by Eastern Shipping Lines, Inc., as master/captain to its vessel. While the vessel was enroute from Hongkong to Manila where it was expected to arrive on
February 18, 1980, Capt. Lucero sent 3 messages to the Company‟s Manila Office, first, that they encountered boisterous weather with strong northeasternly winds causing the vessel to roll and pitch violently; second, that the vessel was laboring violently and that they had to jettison cargoes; third, that they needed immediate assistance because seawater was entering inside the hatch and they were preparing to abandon anytime. Subsequently, the insurer of the M/V Eastern Minicon confirmed the loss of the vessel. The Company paid the corresponding death benefits to the heirs of the crew members, except Mrs. Lucero, who refused to accept the same. Mrs. Lucero filed a complaint for payment of her accrued monthly allotment of P3,183.00, which the Company had stopped since March 1980 and for continued payment of said allotments until the M/V Minicon shall have returned to the port of Manila. She contended that the contract of employment entered into by her husband with the Company was on a voyage-to-voyage basis, and that the same was to terminate only upon vessel‟s arrival in Manila. HELD: It is undisputed that the Company received 3 radio messages from Capt. Lucero. There is thus enough evidence to show the circumstances attending the loss and disappearance of the M/V Eastern Minicon and its crew. The foregoing facts are sufficient to lead to a moral certainty that the vessel had sunk and that the persons aboard had perished with it. Upon the premise, the rule on presumption of death under Article 391 (1) of the Civil Code must yield to the rule of preponderance. Where there are facts, known or knowable, from which a nrational conclusion can be made. The presumption does not step in, and the rule of preponderance of evidence controls. Thus, the
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complaint of Mrs. Lucero was dismissed and instead, she should receive the death benefits.
IS THERE A KIND OF SUCCESSION THAT TAKES EFFECT DURING THE LIFETIME OF THE DECEDENT? Freak succession – this is a case of succession which takes place without the triggering effect of death. This contemplates the delivery of presumptive legitime prior to the death of the person who is supposed to pay such, on the occasion of annulment of marriage and declaration of nullity of marriage. DISTINGUISH SUCCESSION INTER VIVOS FROM SUCCESSION MORTIS CAUSA. 1) Succession Inter Vivos – transfer of ownership takes effect during the lifetime of the giver; governed by the law on donations 2) Succession Mortis Causa – transfer of ownership takes effect upon or adter the death of the giver; governed by the law on succession WHAT RULE SHALL APPLY IF A DONATION IS TO TAKE EFFECT UPON THE DEATH OF THE DONOR? ARTICLR 728. Donations which are to take effect upon the death of the donor partake of nature of testamentary provisions and shall be governed by the rules established in the Title on Succession. Illustrative Cases: Ganuela vs Cawed (401 SCRA 447, April 24, 2003) “ That for and in consideration of the love and affection which the DONOR has for the DONEE, and of the faithful services the latter has rendered in the past to the former, the said
DONOR does by these presents transfer and convey, by way of DONATION, unto the DONEE the property above, described, to become effective upon the death of the ODNOR, but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and of no further force or effect.” HELD: The above disposition is in the nature of donation mortis causa. The distinction between a transfer inter vivos and mortis causa is important as the validity of revocation of the donation depends upon its nature. If the donation is inter vivos, it must be executed and accepted with the formalities prescribed by Article 748 and 749 of the Civil Code, except when it is onerous in which case the rules on contracts that will applu. If it is mortis causa, the donation must be in the form of a will with all the formalities for the validity of the wills, otherwise it is void and cannot transfer ownership. The distinguishing characteristics of a donation mortis causa are the following: 1) It conveys no title or ownership to the transferee before the death of the transferor; or, what amounts to the same thing, that the transferor should retain ownership (full or naked) and control of the property while alive. 2) That before his death, the transfer should be revocable by the transferor at will, ad nutum; but revocability may be provided for indirectly by means of a reserved power in the donor, to dispose of the properties conveyed. 3) That the transfer should be void if the transferor should survive transferee. The phrase “to become effective upon the death of the DONOR” admits of no other interpretation but that Celestina intended to transfer the ownership of the properties to
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Ursulina on her death, not during her lifetime. More importantly, the provision in the deed stating that if the donee should die before the donor, the donation shall be deemed rescinded and of no further force and effect shows that the donation is a postmortem disposition. Furthermore, the deed contains an attestation clause expressly confirming the donation as mortis causa. To classify the donation as inter vivos simply because it is founded on considerations of love and affection is erroneous. That the donation was prompted by the affection of donor for the donee and the services rendered by the latter is of no particular significance in determining whether the deed constitutes a transfer inter vivos or not because a legacy may have an identical motivation. In other words, love and affection may also underline transfers mortis causa. CUEVAS vs. CUEVAS December 14, 1955)
(G.
R
NO.
L-8327,
The crux of the controversy resolves around the following provisions of the deed of donation: “Dapat malaman ni Crispulo Cuevas na samantalang akop ay nabubuhay, and lupa na ipinagkaloob ko sa kaniya ay ako pa rin and patuloy na mamomosecion, makapagpatrabaho, makikinabang at ang iba apang karapatan sa pagmamay-ari ay sa akin pa rin hanggang hindi binabawian ng buhay ng Maykapal at ito naman ay hindi ko nga iya-alis pagkat kung ako ay mamatay na ay ilalaan ko sa kaniya. HELD: The decisive proof that the present donation is operative inter vivos lies in the final phrase to the effect that the donor will not dispose or take away (“hindi ko nga iya -alis” in the original) the land “ because I am reserving
it to him upon my death.” By these words the donor expressly renounced the right to freely dispose of the property in favor of another ( a right essential to full ownership) and manifested the irrevocability of the conveyance of the naked title to the property in favor of the donee. Such irrevocability is disposition post mortem. It is apparent from the entire context of the deed of donation that the donor intended that she should retain the entire beneficial ownership her lifetime, but that the naked title should irrevocably pass to the donee. It is only thus that all expressions heretofore discussed can be given full effect; and when the donor stated that she would continue to retain the “possession, cultivation, harvesting, and all other rights attributes of ownership,” she meant only the dominion utile, not the full ownership. The words “rights and attributes of ownership” should be construed ejusdem generis with the preceding rights of “possession, cultivation and harvesting” expressly enumerated in the deed. Had the donor meant to retain full or absolute ownership she had no need to specify possession, cultivation and harvesting since all these rights are embodied in full or absolute ownership; nor would she then have excluded the right of free disposition from the “rights and attributes of ownership” that she reserved for herself. WHAT ARE HEIRS, LEGATEES AND DEVISEES?
Heirs may be compulsory or forced (like children, wife, who cannot be deprived of their inheritance unless for causes provided by law. They are entitled to legitime. Even if there is no will, they will still inherit by operation of law, in which case, they are called legal or intestate heirs. Voluntary testamentary or testate (like friends, strangers, who are not related to
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the decedent. Can inherit). Or those who receive property by way of devise or legacy (even if relative). Legatees succeed to particular or specific personal property; Devisees succeed to particular or specific real property.
DISTINCTIONS HEIRS
LEGATEES DEVISEES
1. Succeed by general right universal title (to all or a fraction or aliquot part) 2. The term testamentary Heir exists both in testamentary succession and intestate succession;
AND
1. Succed by special or particular title
2. The term legatees and devisees exist only in testamentary succession;
3. The heir, if compulsory, succeeds to the inheritance regardless of the will of the decedent;
3. Legatees and dedvisees succeed only by reason of testator‟s will.
4. Quantity cannot be determined until after liquidation of properties of the estate;
4. Quantity can easily be determined
5. Heir represents the juridical personality of the deceased acquiring his
property, rights and obligations; 6. Heir succeeds to the remainder of the estate after all the debts, devises, and legacies have been paid.
6.
Suceedonly to the determinate thing or amount given.
WHAT IS THE IMPORTANCE OF THE DISTINCTIONS BETWEEN HEIRS ON ONE HAND AND LEGATEES AND DEVISEES ON THE OTHERHAND? 1. In the preterition under Article 854 instituted voluntary heir gets nothing; legatees and devisees still get the property given as long as the legitime is not impaired. 2. Under Article 793 on after-acquired properties, legatees and devisees as a general rule get only the property devised or bequeathed existing at the time of the execution of the will. Heirs are not covered by Article 793 because their inheritance is residual. WHAT ARE THE ESSENTIAL ELEMENTS CHARACTERISTICS OF A WILL?
5. Do represent juridical personality acquires properties;
not the coz only
AND
ACRONYM (PASS U C F FRIDM) “Pass you see freedom” 1. Personal-will making is the act of the testator, and testamentary power cannot be delegated. A will is supposed to be confidential, hence, wills are not considered as public documents even if notarized. 2. Animus Testandi- there must be intent to make a will and the testator should
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know that the purpose of the will is to dispose of his propertis mortis causa. Persons with unsoud mind cannot execute wills because they do not know the character of the testamentary act. 3. Statutory-will-making is merely a privilege, not an inherent right. The law can without testamentary power. Hence, will must be, subordinated to law land policy (Herreros vs Gil 88 Phil 260) 4. Solemn- the formalities required by law must be complied with 5. Unilateral-the testator cannot condition the making of the will upon the consent or act of another. Hence bilateral disposicion captatoria, are prohibited. 6. Capacity-the testator must have the testamentary capacity of (sound mind and at least 18 years old) 7. Freedom from Vitiated Consent – the presence of vitiated consent is a cause for the disallowance of a will 8. Revocable – testator can revoke his will anytime during his lifetime, even if already probated. A will is essentially ambulatory. 9. Individual – a will must be the act of only one person. Hence, joint wills are not allowed. 10. Disposition of Property – a will must contain a disposition of property. It may be direct disposition or indirect disposition, like a will containing only a disinheritance of an heir. (Merza vs Porras[93 Phl 142]); Reiterated in SEANGIO versus REYES, Gr No. 149753 MITUG vs CA (183 SCRA 755) The Survivorship Agreement executed between husband and wife over their joint savings account stipulates that when either of them dies, the balance of the savings
account shall belong to the one who survives. Held: The will must purport to deliver ones separate properties in favor of another. Hence, if husband and wife have a joint savings account and they merely agree in an instrument that when either of them dies, the balance of the savings account shall belong to the one who survives, this is not a will because the account is their joint holding.
WHAT ARE THE RULES FOR CONSTRUCTION IN SUCCESSION?
TESTACY INTESTACY
IS
FAVORED
OVER
RODRIGUEZ v BORJA (17 SCRA 41) On March 4, 1963, a purported last will and testament of Fr. Rodriguez was delivered to the Clerk of Court of Bulacan by Apolonia Pangilinan and Adelaida Jacalan; that on March 8, 1963, Maria Rodriguez and Angela Rodriguez filed a petition for leave of court to allow them to examine the alleged will; that on March 11, 1963 before the Court could act on the petition, the same was withdrawn that on March 12, 1963, Maria Rodriguez and Angela Rodriguez filed before the Court of First Instance of Rizal a petition for the settlement of the intestate estate of Fr. Rodriguez alleging, among other things, that Fr. Rodriguez died without leaving a will; and that on March 12, 1963 Apolonia Pangilinan and Adelaida Jacalan filed a petition for the probation of the will delivered by them on March 4, 1963. The movants contend that since the intestate proceedings in the Court of First Instance of Rizal was filed at 8:00AM on March 12, 1963
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while the petition for probate was filed in the Court of First Instance of Bulacan at 11:00AM on the same date, the latter Court has no jurisdiction to entertain the petition for probate. Held: The jurisdiction of the Court of First Instance of Bulacan became vested upon the delivery thereto of the will of the late Fr. Rodriguez on March 4, 1963, even if no petition for its allowance was filed until later because upon the will being deposited the court could, motu proprio, have taken steps to fix the time and place by proving the will and issued the corresponding notes conformably to what is prescribed by Section 3, Rule 76 of the Revised Rules of Court. The use of the disjunctive in the words “when a will is delivered to or a petition for the allowance of a will is filed” plainly indicates that the court may act upon the mere deposit therein of a decedent‟s testament, even if no petition‟s for its allowance is as yet filed. Where the petition for probate is made after the deposit of the will, the petition is deemed to relate back to the time when the will was delivered. Since the testament of Fr. Rodriguez was submitted and delivered to the Court of Bulacan on March 4, while petitioners initiated intestate proceedings in the Court of First Instance of Rizal only on March 12, eight days later, the precedence and exclusive jurisdiction of the Bulacan court is contestable. The other person is that, in our system of civil law, intestate succession is only subsidiary or subordinate to the testate, since intestacy only takes place in the absence of a valid operative will. Therefore, as ruled in Castro, et. al versus Martinez 10 Phl. 307, “only after final decision as to the nullity of testate succession could an intestate succession be instituted in the form of pre-establishment action”. The institution of intestacy proceedings in Rizal may
not thus proceed while the probate of the will of Father Rodriguez is pending. THE WILL MUST BE LIBERALLY CONSTRUED IN FAVOR OF ITS VALIDITY. HENCE, BETWEEN 2 DISPOSITIONS, ONE WILL MAKE THE WILL INVALID WHILE THE OTHER WILL MAKE THE WILL VALID. THAT INTERPRETATION BY WHICH THE WILL IS VALID SHOULD BE PREFERRED. BALANAY, JR vs MARTINEZ (64 SCRA 452, Gr No. L-39247, June 27, 1975) Felix J. Balanay, Jr. filed in the lower court a petition dated February 27, 1973 for the probate of his mother‟s notarial will dated February 27, 1973 for the probate of his mother‟s notarial will dated September 5, 1970 which is written in English. In that will Leodegaria Julian declared (a) that she was the owner of the “southern half of nine conjugal lots (part II); (b) that she was the absolute owner of two parcels of land which she inherited from her father (par. III); (c) that it was her desire that her properties should not be divided among her heirs during her husband‟s lifetime and that their legitimes should be satisfied out of the fruits of her properties (par V). Then in Paragraph V of the will she stated that after her husband‟s death (he was eighty-two years old in 1973) her paraphernal lands and conjugal lands (which she described as “my properties”) should be divided and distributed in the manner set forth in that part of the will. She devised and partitioned the conjugal lands as if they were all owned by her. She disposed of in the will her husband‟s one half share of the conjugal assets. Felix Balanay, Sr opposed the probate of the will on the grounds of lack of testamentary capacity, undue influence, pretention of the husband and alleged improper partition of the conjugal estate. The oppositors claimed that Felix Balanay, Jr.
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should collate certain properties which he had received from the testratix. Held: The probate court erred in declaring that the will was void and in converting the testate proceeding into an intestate proceeding notwithstanding the fact that in its order of June 18, 1973, it gave effect to the surviving husband‟s conformity to the will and to his renunciation of his hereditary rights which presumably included his one-half share of the conjugal estate. The rule is that “the invalidity of one several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made” (Art. 792, Civil Code). “Where some of the provisions of a will are valid and others invalid, the valid parts will be upheld if they can be separated from the invalid without defeating the intention of the testator or interfering with the general testamentary scheme, or doing injustice to the beneficiaries”. (95 CJS 873) The statement of the testatri x that she owned the “southern half of the conjugal lands is contrary to law because, although she was a co-owner thereof, her share was inchoate and proindiviso. But that illegal declaration does not nullify the entire will. It may be disregarded. The provision of the will that the properties of the testatrix should not be divided among her heirs during her husband‟s lifetime but should be kept intact and that the legitimes should be paid in cash is contrary to article 1080 of the Civil Code. The testatrix in her will made a partition of the entire conjugal estate among her six children (her husband had renounced his hereditary rights and his one-half conjugal share). She did not assign the whole estate to one or more children as envisaged in Article 1080. Hence, she had no right to require that
the legitimes be paid in cash. On the other hand, her estate may remain undivided only for a period of twenty years. So, the provision that the estate should not be divided during her husband‟s lifetime would at most be effective only for twenty years from the date of her death unless there are compelling reasons for terminating the co-ownership. In the instant case, there is no doubt that the testatrix and her husband intended to partition the conjugal estate in the manner set forth in paragraph V of her will. It is true that she could dispose of by will only her half of the conjugal estate (Article 170 Civil Code) but since the husband, after the dissolution of the conjugal partnership had assented to her testamentary partition of the conjugal estate, such partition has become valid, assuming that the will may be probated. In the instant case, the preterited heir was the surviving spouse. His prerition did not produce intestacy. Moreover, he signified his conformity to his wife‟s will and renounced his hereditary rights. Save in an extreme case where the will on its face is intrinsically void, it is the probate‟s court duty to pass first upon the formal validity of the will. Generally, the probate of the will is mandatory. To give effect to the intention and wishes of the testatrix is the first and principal law in the matter of testaments. Testacy is preferable to intestacy. An interpretation that will render a testamentary disposition operative takes precedence over a construction that will nullify a provision of the will. Testacy is favored. Doubts are resolved in favor of testacy especially where the will evinces an intention on the part of the testator to dispose of practically his whole estate. So compelling is the principle that instestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will
11
can be varied for the purpose of giving it effect. THE TESTATOR WISHES CONSTITUTE THE FIRST AND PRINCIPAL LAW IN THE MATTER OF TESTAMENTS VDA. DE VILLANUEVA vs JUICO (4 SC RA 550) In the will of the testator he bequeathed in favor of his wife ½ certain properties for her “use and possession while alive and she does not contract a second marriage otherwise, the properties shall pass to the testator‟s grandniece.” It was contended that the title to the properties became absolutely vested in the estate of the window upon her death, on account of the fact that she never remarried. Held: The grandniece is entitled to the properties for the plain intent of the testator was to invest his widow only with a lifetime usufruct subject to the condition that if she remarried, her rights would thereupon cease even during her lifetime. It would have been different, had he given her full ownership because not having remarried, the grand niece could not inherit from her. This is in contrast with the remainder of the estate in which she was instituted universal heir together with the testator‟s brother. If the testator had intended to impose as sole condition the nonremarriage of his widow, the words „use and possession while alive‟ would have been unnecessary, since she could only remarry during her own lifetime. THE WORDS OF A WILL ARE TO RECEIVE AN INTERPRETATION WHICH WILL GIVE TO EVERY EXPRESSION SOME EFFECT, RATHER THAN ONE WHICH WILL RENDER ANY OF THE EXPRESSIONS INOPERATIVE; AND OF TWO MODES OF INTERPRETING A WILL, THAT IS TO BE PREFERRED WHICH WILL PREVENT INTESTACY.
YAMBAD vs GONZALES (1 SCRA 1157) Appellant filed an action against the appellees that the latter employ the former as tenant during his lifetime on parcels of land bequeathed to the appellees. The lower court ruled that the provisions of the will relied upon by the appellant merely amount to a suggestion to appellees, who, through morally bound, are not legally compelled to follow said suggestion because the word pahintulutan employed with the reference to the working of appellant on the lands only means to permit or to allow but not to direct appellees to appoint appellant as tenant. Held: lower court is wrong. The real import of the wish of the testatrix for her will contains a clear directive to employ appellant as may be seen from the words preceding the word pahintulutan which say: Dapat din naman malaman ng dalawa kong tagapagmana ... na sila ay may dapat tungkulin o gampanan gaya ng sumusunod. “The words tungkulin o gampanan mean to do or to carry out as a mandate or directive and having reference to the word pahintulutan, can convey no other meaning than to impose a duty upon the appellees. HOW ARE AMBIGUITIES IN THE WILL TREATED?
Two (2) kinds of ambiguities 1. Latent or Intrinsic ambiguity – an ambiguity or defect tht does not appear in the face of the will. You only discover them when you go beyond the will, when you look for the persons or properties. This consists of: a. Imperfect description of the heir, legatees, or devisee
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b. Imperfect description of the property given c. When 2 or more persons meet the description d. When 2 or more things meet the description 2. Patent or Extrinsic Ambiguity – an ambiguity that is apparent on the face of the will itself. You discover this my merely looking at the will. Example: 1 hereby bequeath all my money to some of my students. Hence, from the will itself, it is not clear how many students are intended. How to cure the ambiguities:
complied with in order to make the will valid. Forms such as the type of instrument (depending whether notarial or holographic), capacity of the testator, qualifications of witnesses. Extrinsic validity may be seen from 2 viewpoints: time and place (country) B. Intrinsic validity – refers to the legality of the provisions in an instrument; contract or will. E.g Whether or not there was preterition, whether or not there is invalid disinheritance whether or not there is impairment of legitime. May be seen also from 2 viewpoints.
The same for both: a) By intrinsic evidence. That is by looking at the context of the will, examining how the words are used. b) By extrinsic evidence. That is going outside the will.
CAN ORAL OR PAROL EVIDENCE BE RESORTED TO IN ORDER TO CURE AN AMBIGUITY? Yes, except oral evidence or parol evidence pertaining to the supposed oral declarations of the testator. This would not be allowed because this may open the door to fraud. Anybody may claim that he/she heard the testator said something. But other oral evidence may be allowed as an exception to the Parol Evidence Rule under Rule 130, Section 9 of the Rules of Court. WHAT LAWS GOVERN THE VALIDITY OF WILLS?
Two kinds of validity: A. Formal or extrinsic validity – refers to the forms and solemnities that must be
Extrinsic validity from the view point of Time Extrinsic validity of will depends upon the observance of the law in force at the time the will is made. The extrinsic validity of will is measured against the law in force at the time of will making, not at time of death, not at time of probate. Reason: The testator cannot possibly know, and is not expected to know the laws that will govern in the future. Hence, it is sufficient that he follows the laws in force at the time that he makes his will.
Enriquez v. Abadia [95 Phil. 627] On September 6, 1923, Father Sancho Abadia, parish priest of Talisay, Cebu, executed a document purporting to be his Last Will and Testament. He died on January 14, 1943. The will was a holographic will; that it was in the handwriting of the testator and that although at the time it was executed and at the time of the testator‟s death, holographic wills were not
13
permitted by law still, because at the time of the hearing and when the case was to be decided the new Civil Code was already in force, which Code permitted the execution of holographic wills, under a liberal view, and to carry out the intention of the testator which according to the trial court is the controlling factor and may override any defect in form, said trial court by order dated January 24, 1952, admitted to probate the Last Will and Testament of Father Sancho Abadia. HELD: The formal validity of a will depends upon the observance of the law in force at the time it is made, not by the law in force at the time of the testator‟s death, or at the time the supposed will is presented in court for probate, or when the petition is decided by the court. Consequently, the validity of a will is not affected by the subsequent amendment of the law with respect to formalities after the execution of the will, whether before or after the death of the testator. Where a will was void for failure to observe certain formalities under the law then in force, a subsequent law lessening or dispensing with said formalities cannot be applied so as to validate the void will. Thus, the fact that the New Civil Code allows a holographic will does not validate one made before its effectivity and void under the prevailing law.
Therefore, Abada‟s will does not require acknowledgement before a notary public.
Extrinsic Validity from the Viewpoint of Place (Country)
A. Testator is a Filipino who executes will in the Philippines. Observe Philippine Laws (NCC) – Art. 17 B. Testator is a Filipino who executes will abroad before the diplomatic or consular officials of the Republic of the Philippines in a foreign country: Observe Philippine Laws (NCC) – Art. 17 C. Testator is a Filipino who executes will abroad. Observe: 1. Law of the place where he may be – Article 815 2. Law of the place where he executes the will – Article 17 (essentially same with 815, because law of place where he executes the will is the law of the place where he may be) 3. Law of the Philippines (because Art. 815 merely says “is authorized” meaning, he principally has to follow Philippine Law but is (permitted or authorized to follow the law of the place where he may be)
Testate Estate of the Late Alipio Abada v. Baja [G.R. No. 147145, January 31, 2005]
D. Testator is an alien who executes will abroad: (observe:
Abada executed his notarial will on June 4, 1932 but he died when the New Civil Code took effect. The will was not acknowledged before a notary public. Is the will valid?
1. Law of the place of his residence or domicile – Article 816
HELD: YES. The laws in force at that time are the Civil Code of 1889 or the Old Civil Code and Act No. 190 or the Code of Civil Procedure which governed the execution of wills before the enactment of the New Civil Code. The Code of Civil Procedure repealed Article 685 of the Old Civil Code. Under the Code of Civil Procedure, the intervention of a notary is not necessary in the execution of any will.
2. Law of his own country or nationality – Article 816 3. Philippine Law (NCC) – Article 816 4. Law of the Place where will is executed – Article 17 Example: Tan American Citizen who has his residence in Japan and who executes a will in Germany.
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E. Testator is an alien who executes a will in the Philippines. Observe: 1. Law of his country or nationality Article 817 2. Law of the place where will is executed (Philippines) – Article 17 Example: X a Japanese who executes will in the Philippines may observe Japanese law or Philippine law.
Intrinsic Validity from the Viewpoint of Time The law at the time of the death of the testator or when the succession opens because it is at that time when the rights are transmitted to the heirs, devisees or legatees. Clear in the transitory provision of the Civil Code in Article 2263 and Under Art. 774.
Intrinsic Validity from the Viewpoint of Place or Country Law applicable is the national law of the decedent under Article 16 of the New Civil Code.
Bellis v. Bellis (June 8, 1967) In the present case, it is not disputed that the decedent was both a national of Texas and a domicile thereof at the time of his death. So that even assuming Texas has a conflict of law rule providing that the domiciliary system (law of the domicile) should govern, the same would not result in a reference back (Renvoi) to Philippine law, but would still refer to Texas Law. Nonetheless, if Texas has a conflicts rule adopting the situs theory (lex rei sitae) calling for the application of the law of the place where the properties are situated, renvoi would arise, since the properties here involved are found in the Philippines. In the absence, however of proof as to the conflict of law rule of Texas, it should not be presumed different from ours. Appellant‟s position is therefore not rested on the doctrine of renvoi. As stated,
they never invoked nor even mentioned it in their arguments. Rather they argue that their case falls under the circumstances mentioned in the third paragraph of Article 17 in relation to Article 16 of the Civil Code. Where the decedent was a citizen of a foreign country and under the laws of said country there are no forced heirs, the system of legitimes in Philippine law cannot be applied to the succession to the decedent‟s estate because the intrinsic validity of the provisions of the decedent‟s will and the amount of successional rights are to be determined by the law of such country. A provision in the foreigner‟s will that his properties should be distributed in accordance with Philippine law and not in accordance with his national law is void being contrary to Article 16. It is therefore evident that whatever public policy or good customs may be involved in our System of legitimes, Congress has not intended to extend the same to the succession of foreign nationals. For it has specifically chose to leave, inter alia, the amount of successional rights to the decedent‟s national law. Specific provisions must prevail over general ones. PCIB v. Escolin [56 SCRA 266] The question of what is the foreign law governing the matter in issue is one of fact and not of law. Foreign laws may not be taken judicial notice of and has to be proven like any other fact in dispute between the parties in any proceeding except when the said laws are already within the actual knowledge of the courts such as when they are well and generally known, or they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. Miciano v. Brimo [50 Phil. 867, G.R. No. L-22595, November 1, 1927] With respect to foreign law on the formalities of wills, in the absence of proof to the contrary, it is presumed that foreign laws on the formalities of wills are the same as those prescribed under
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Philippine Laws. This is Processual Presumption.
the
Doctrine
of
The appellant‟s opposition is based on the fact that the partition in question puts into effect the provisions of Joseph G. Brimo‟s will which are not in accordance with the laws of his Turkish nationality, for which reason they are void as being in violation or article 10 of the Civil Code which, among other things, provides the following: Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the amount of the successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person whose succession is in question, whatever may be the nature of the property or the country in which it may be situated. But the fact is that the oppositor did not prove that said testamentary dispositions are not in accordance with the Turkish Laws, inasmuch as he did not present any evidence showing what the Turkish laws are on the matter, and in the absence of evidence on such laws, they are presumed to be the same as those of the Philippines. Alonzo Q. Ancheta v. Candelaria GuerseyDalaygon [G.R. No. 139868, June 8, 2006] Sps. Audrey and Richard were American Citizens who have resided in the Philippines for 30 years. They have an adopted daughter, Kyle. On July 29, 1979, Audrey died, leaving a will. In it, she bequeathed her entire estate to Richard, who was also designated as executor. The will was admitted to probate before the Orphan‟s Court of Baltimore, Maryland, U.S.A, which named James N. Phillips as executor due to Richard‟s renunciation of his appointment. The court also named Atty. Alonzo Q. Ancheta of the Quasha Asperilla Ancheta Pena & Nolasco Law Offices as ancillary administrator.
In 1981, Richard married Candelaria with whom he has two children. On October 12, 1982, Audrey‟s will was also admitted to probate by the then Court of First Instance of Rizal. On July 20, 1984, Richard died, leaving a will, wherein he bequeathed his entire estate to Candelaria, save for his rights and interests over the A/G interiors, Inc. Shares, which he left to Kyle. The will was also admitted to probate by the Orphan‟s Court of Ann Arundel, Maryland U.S.A and James N. Phillips was likewise appointed as executor, who in turn, designated Atty. William Quasha or any member of the Quasha Asperilla Ancheta Pena & Nolasco Law Offices, as ancillary administrator. Richard‟s will was then submitted for probate before the RTC of Makati. Atty. Quasha was appointed as anciliary administrator. Atty Ancheta filed a project of partition of Audrey‟s estate, with Richard being apportioned the ¾ undivided interest in the Makati property, 48.333 shares in A/G Interiors, Inc., and P9, 313.48 from the Citibank current account; and Kyle, the ¼ undivided interest in the Makati property, 16, 111 shares in A/G Interiors, Inc., and P3, 104.49 in cash. The project of partition was granted and approved by the trial court. Meanwhile, the ancillary administrator in the second petition also filed a project of partition wherein 2/5 of Richard‟s ¾ undivided interest in the Makati property was allocated to respondent while 3/5 thereof wer e allocated to Richard‟s three children. This was opposed by Candelaria on the ground that under the law of the State of Maryland “a legacy passes to the legatee the entire interest of the testator in the property subject of the legacy.” Since Richard left his entire to Candelaria, except for his rights and interests over the A/G Interiors, Inc, shares, then his entire ¾ undivided interest in the Makati property should be given to Candelaria. Atty. Ancheta contends that he acted in good faith in performing his duties as an ancillary administrator. He maintains that at the time of the filing of the project of partition, he was not aware of the relevant laws of the State of Maryland, such that the partition was made in accordance with Philippine Laws. Atty.
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Ancheta also imputes knowledge on the part of Candelaria with regard to the terms of Aubrey‟s will, stating that as early as 1984, he already apprised Candelaria of the contents of the will and how the estate will be divided. Candelaria argues that Atty. Ancheta‟s breach of his fiduciary duty as ancillary administrator of Aubrey‟s estate amounted to extrinsic fraud. According to Candelaria, Atty. Ancheta was duty-bound to follow the express terms of Aubrey‟s will, and his denial of knowledge of the laws of Maryland cannot stand because Atty. Ancheta is a senior partner in a prestigious law firm and it was his duty to know the relevant laws. HELD; Atty. Ancheta‟s failure to proficiently manage the distribution of Audrey‟s estate according to the terms of her will and as dictated by the applicable law amounted to extrinsic fraud. Hence the CA Decision annulling the RTC Orders dated February 12, 1988 and April 7, 1988, must be upheld. It is undisputed that Audrey Guersey was an American citizen domiciled in Maryland, U.S.A. During the reprobate of her will in Special Proceeding No. 9625, it was shown, among others that at the time of Audrey‟s death, she was residing in the Philippines but is domiciled in Maryland, U.S.A; her Last Will and Testament dated August 18, 1972 was executed and probated before the Orphan‟s Court in Baltimore, Maryland, U.S.A, which was duly authenticated and certified by the Register of Wills of Baltimore City and attested by the Chief Judge of said court; the will was admitted by the Orphan‟s Court of Baltimore City on September 7, 1979; and the will was authenticated by the Secretary of State of Maryland and the Vice Consul of the Philippine Embassy. Being a foreign national, the intrinsic validity of Audrey‟s will, especially with regard as to who are her heirs is governed by her national law, i.e., the law of the State of Maryland, as provided in Article 16 of the Civil Code. While foreign laws do not prove themselves in our jurisdiction and our courts are not authorized to take judicial notice of them; however, Atty. Ancheta, as ancillary administrator of Audrey‟s estate, was duty -
bound to introduce in evidence the pertinent law of the State of Maryland. Atty. Ancheta admitted that he failed to introduce in evidence the law of the State of Maryland on Estates and Trusts, and merely relied on the presumption that such law is the same as the Philippine law on wills and succession. Thus, the trial court peremptorily applied Philippine Laws and totally disregarded the terms of Audrey‟s will. The obvious result was that there was no fair submission of the case before the trial court or a judicious appreciation of hte evidence presented. Atty. Ancheta insists that his application of Philippine laws was made in good faith. The Court cannot accept his protestation. How can Atty. Ancheta honestly presume that Philippine laws apply when as early as the reprobate of Audrey‟s will before the trial court in 1982, it was already brought to fore that Audrey was a U.S. Citizen, domiciled in the State of Maryland. Atty. Ancheta is a senior partner in a prestigious law firm, with a “big legal staff and a large library” He had all the legal resources to determine the applicable law. It was incumbent upon him to exercise his functions as ancillary administrator with reasonable diligence, and to discharge the trust reposed on him faithfully. Unfortunately, he failed to perform his fiduciary duties. Testate Estate of Suntay v. Suntay [July 31, 1964] With respect to foreign law governing procedure in probate matters in case of reprobate in the Philippines, there is no presumption that such laws are the same as that prescribed under Philippine Law. The will should be denied probate in the absence of such proof. Testate Estate of Christensen v. Garcia [January 31, 1963] If the conflicts rules under the national law of the deceased refer the matter to the law of the domicile and the foreigner was domiciled in the Philippines at the moment of death,
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Philippine courts will have to apply the Philippine internal law on succession. This is the Doctrine of Renvoi, Renvoi, which is the referring back to the forum of the problem. WHAT ARE THE INSTANCES WHEN PHILIPPINE LAWS MAY STILL APPLY INSOFAR AS THE INTRINSIC VALIDITY OF THE WILL OF A FOREIGN NATIONAL IS CONCERNED? 1. Application of the Doctrine of Renvoi 2. Application of the Doctrine of Processual Presumption WHO CAN EXECUTE WILLS? 1. Persons of either sex at least eighteen years of age; 2. Persons of sound mind at the time of the execution of the will.
A. Testator must know the nature of hte estate to be disposed of - must have a sufficient recollection of his properties and comprehend their kind, character and quality in general. B. Testator must know the proper objects of his bounty – must be aware of those persons who would naturally be supposed to have claim upon him. C. Testator must know the character of the testamentary act – must understand that he is executing an instrument which will dispose of his property upon his death and which he may revoke anytime. CITE INSTANCES WHEN THE TESTATOR WAS NOT CONSIDERED OF UNSOUND MIND? -
Hence: 1. One suffering under civil interdiction is allowed to make a will because civil interdiction only prohibits disposition of property inter vivos. 2. Spendthrifts or prodigals under guardianship are not disqualified provided at least 18 years and of sound mind. -
Soundness of mind must exist at the time of execution of will, not required to be of sound mind before or after execution of will – Dorotheo v. CA [320 SCRA 12, 1999] Under the Civil Code, due execution includes a determination of whether the testator was of sound and disposing mind at the time of its execution, that he had freely executed the will and was not acting under duress, fraud, menace or undue influence and that the will is genuine and not a forgery, that he was of the proper testamentary age and that he is a person not expressly prohibited by law from making a will.
WHAT ARE THE REQUISITES OF A SOUND MIND?
-
-
-
-
Senility, Senile Dementia, only complete senile dementia will result ot testamentary incapacity; Torres v. Lopez de Bueno (48 Phil. 772) Senile debility, deafness, poor memor: Sancho v. Abella, (58 Phil 728) 728) Weakness of mind or partial imbecility from disease of body or from age: Alsua-Betts v. CA (July 30, 30, 1979) Blindness: Avelino v. Dela Cruz (21 Phil 521) Failure of memory: Bagtas v. Paguio, Jocson v. Jo cson (46 Phil 701), Cuyugan C uyugan v. Baron Epilepsy: Existence will notaffect. Only when seizure occurs while engaged in testamentary act. Insomnia: Caguioa v. Calderon (20 Phil. 400) Tuberculosis: Yap Tua v. Yap CA Kuan(27 Phil. 579) Diabetes: Samson v. Corrales Tan Quintin (44 Phil 573) Cholera: Galvez v. Galvez (26 Phil. 243) Paralysis and loss of speech: Bagtas v. Paguio Celebral Hemorrhage with hemiplagia: Carillio v. Jaojoco (46 Phil 957) Old Age: Hernaez v. Hernaez (1 Phil 683) Delirium: Ordinarily not. Only when beclouds the mind so as not to
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-
-
understand the nature of act, extent of property, objects of bounty Ill health: even if hand is guided in signing will, lying down and unable to move or stand up unassisted – Neyra – Neyra v. Neyra (76 Phil 333) Eccentricities ViolentTemperament Passions and prejudices: only when borders on delusion Drunkeness or drug addiction: only when excessive Religious belief: Unless assumes chronic condition of delusion Asthma: Bugnao v. Uba (14 Phil. 163)
CITE INSTANCES WHEN THE TESTATOR WAS CONSIDERED OF UNSOUND MIND? - Lack of memory and understanding and pre-senile dementia; Albornoz v. Albornoz (71 Phil 414) - State of unconsciousness - Excitement or stress: if cannot recall intelligently extent of his property, etc. - Partial insanity; insane delusions: hallucination; belief in things which do not exist - Religious delusion - Drunkeness or drug addiction - Idiocy – congenital intellectual deficiency - Comatose stage - Stage of delirium
guardianship does not ipso facto mean that the testator was of unsound mind. 3. Insanity of a general or permanent nature shown to have existed at one time is presumed to have continued. -
Burden of proving otherwise rests upon the proponent of the will
WHAT WILLS PHILIPPINES?
ARE
RECOGNIZED
IN
THE
A. Ordinary or Notarial Will – requires among other things, an attestation clause, an acknowledgement before a notary public. B. Holograph or holographic will – written entirely, dated and signed, in the handwriting of the testator. No attestation clause or acknowledgement required. WHAT ARE THE FORMALITIES OF NOTARIAL WILLS? 1. Must be in writing; 2. Must be in language or dialect known to the testator; 3. Subscribed at the end thereof by the testator himself himself or by the testator‟s name written by some other person in his presence, and by his express direction;
TO
4. Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another.
A. General Presumption: testator is of sound mind. Burden of proving otherwise rests upon those who oppose the probate of will. To discharge burden: clear and convincing evidence is required.
5. Must be signed on the left margin by the testator or the person requested by him to write his name, and by the instrumental witnesses on each and every page thereof, except the last;
B. When testator is presumed of unsound mind: 1. Publicly known to be insane one month or less before making of will. 2. Judicially declared insane before making a will. In Torres v. Lopez (48 Phil. 772), the Supreme Court ruled that the fact that the testator was judicially placed under
6. All the pages shall be numbered correlatively in letters placed on the upper part of each page;
WHAT ARE THE PRESUMPTIONS SOUNDNESS OF MIND?
AS
7. There must be an attestation clause;
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8. The will must be acknowledged before a notary public. -
Noncupative wills – wills orally made by the testator in contemplation of death and before competent witnesses; NOT RECOGNIZED.
LANGUAGE -
Testator need not be proficient in the language used. It is sufficient that he can make known his testamentary act through the language used.
-
Presumption: knew the language in which the will is written unless the contrary is proven.
-
Hence: 1. No statutory requirement that the will should allege that the language used therein is understood by the testator (Lopez v. Liboro, 81 Phil. 429) 2. No need to state in the attestation clause that the will is written in the language known to the testator. 3. That the will is in the language known to the testator can be proved by EXTRINSIC EVIDENCE or even by oral evidence. 4. If executed in the language of the locality where the testator lives there is a presumption that testator knows it. Abangan v. Abangan (40 Phil 476) The circumstance appearing in the will itself that same was executed in the City of Cebu and in the dialect of this locality where the testatrix was a neighbour is enough, in the absence of any proof to the contrary, to presume that she knew this dialect in which her will is written. Reyes v. Vidal (91 Phil. 127)
The failure of the petitioner‟s witnesses to testify that the testatrix knew and spoke Spanish does not in itself alone suffice to conclude that this important requirement of the law has not been complied with when there is though evidence of record which supplies this technical omission. The fact that the testatrix was a mestiza Espanola, was married to a Spaniard, made several trips to Spain and some of her letters submitted as evidence by the oppositor were written in Spanish by the testatrix in her own writing give rise to the presumption that the testatrix knew the language in which the testament has been written, which presumption should stand unless the contrary is proven. Testate Estate of the Late Alipio Abada v. Abaja (G.R. No. 147145, January 31, 2005) Abada died sometime in May 1940. His widown Paula Toray “Toray” died sometime in September 1943. Both died without legitimate children. On September 13, 1968, Alipio filed a petition for the probate of the last will and testament of Abada. Abada allegedly named as his testamentary heirs his natural children Eulogio and Rosario Cordova. Alipio is the son of Eulogio. Caponong, as well as the nephews, nieces and grandchildren of Abada and Toray opposed the petition. Issues: 1. Whether Caponong-Noble is precluded form raising the issue of whether the will of Abada is written ina languge known to Abada; 2. Whether evidence aliunde may be resorted to in the probate of the will of Abada. Held: Caponong-Noble points out that nowhere in the will can one discern hat
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Abadda knew the Spanish language. She alleges that such defect is fatal and must result in the disallowance of the will. On this issue, the CA held that the matter was not raised in the motion to dismiss and that it is now too late to raise the issue on appeal. We agree with Caponong-Noble that the doctrine of estoppel does not apply in probate proceedings. Nevertheless, CaponongNoble‟s contention must still fail. There is no statutory requirement to state in the will itself that the testator knew the language or dialect used in the will. This is a matter that the testator knew the language or dialect used in the will. This is a matter that a party may establish by proof aliunde. Caponong-Noble further argues that Alipio, in is testimony, has failed, among others, to show that Abada kenw or understood the contents of the will and the Spanish language used in the will. However, Alipio testified that Abada used to gather Spanish-speaking people in their place. In these gatherings, Abada and his companions would talk in the Spanish language. This sufficiently proves that Abada speaks the Spanish language. Testate Estate of v.Javellana(106 Phil 1973)
Javellana
Where there is want of expression in the body of the will itself or in the attestation clause that the testator knew the language in which the will was written, proof thereof may be established by evidence aliunde. Although lack of such evidence may be cured by presumption of knowledge of the language or dialect used in the will, no such presumption can arise where, as in the case at bar, the will was executed in Spanish, while the testtor was a Visayan residing in San Juan, Rizal at the time of his death. Acop v. Piraso, 52 Pil. 660
Nor can the presumption in favor of a will established by this court in Abangan v. Abangan (40 Phil 476), to the effect that the testator is presumed to know the dialect of the locality where he resides, unless there is proof to the contrary, even be invoked in support of the probate of will, because in the instant case not only is it notproven that English is the language of the City of Baguio where the deceased Piraso lived and where the will was drawn, but that the record contains positive proof that said Piraso knew no other language than the Igorrote dialect, with a smattering of Ilocano; that is he did not know the Englishlanguage in which the will is written. So that even if such a presumption could have been raised in this case, it would have been wholly contradicted and destroyed. Suroza v. Honrado (110 S 32) Testator must know or at least understand the language. This lack of knowledge cannot be cured by interpretation or explanation of the contents to the testator.
With respect to attesting witnesses, they need not know the language used in the body of the will, only in the attestation clause. If do not know the language in the attestation clause, may be cured by explanation or interpretation. Testator need not also know the language in the attestation clause. Is the Date Important in Wills? 1. Not an essential requirement for a notarial will. Will not vitiate the will. Necessary to know only when there are more than 1 will to determine which is the last will.Date may be established by exrinsci evidence. 2. Required in holographic wills.
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What is meant by Subscription? Subscribed means signed. Who will sign? a. The testator himself b. Some other person provided it is under the express direction and in the presence of the testator. Some other person: Anybody may sign for the testator, even one of the subscribing witnesses (Barut v. Cagacungan, 21 Phil 461), as long as there are more than 3 as implied in the case of (In Re Will of Tan Duico, 45Phil. 807) when it said: “that the testator or the person acting in his stead as well as the 3 witnesses sign on the left margin on each page or sheet. Note: In the case of Barut there were4 witnesses. In the presence: it is not necessary that testator actually sees the signing as long as he can do so if he wants to without any physical obstruction. Or if the testator is blind, it is enough that he could have felt it. Under the express direction: Must be expressly authorized. The testator shall, by word of mouth or action (Nodding of head,) clearly indicate to the proxy a desire to have his name signed to the instrument. The testator‟s mere knowledge or consent that his name was being signed for him, or his acquiescence in such an act, or a mere implied assent to the signing by another person is not sufficient to meet the requirement of express direction. Approval must precede, not succeed the act of signing. What is Being Signed or Affixed?
The evidence of record satisfactorily discloses that Cristina Valdes, deceased, placed her cross against her name attached by some other person to the instrument offered for probate which purports to be her last will and testament, in the presence of the three witnesses whose names are attached to the attesting clause, and that they attested and subscribed the instrument in her presence and in the presence of each other. -but cross was not sufficient in Garcia v. Lacuesta (90 Phil 489) Because the cross was not the customary signature of the testator, there should have been a statement in the attestation clause that the will was signed by some other person in behalf of the testator. The absence of this statement invalidated the will. How about Electronic/Digital Signature, under the Electronic Commerce Act -Not allowed because an e-signature is supposed to be attached to or logically associated with the e-data message or edocument or any methodology or procedures employed or adopted by a person and executed or adopted by such a person with the intention of authenticating or approving an e-message (information) or e-document. Esignatures are affixed pursuant to transactions and contracts. E-signature is not a handwritten signature that is scanned or graphically imprinted on the e-document. Where should the signature be Located? -At the logical end of the will, not necessarily the physical end. Immediately after the last dispositive provision, before the attestation clause.
Customary Signature of the testator or any mark actually intended as a signature, even if not the customary signature.
Purpose to prevent insertion of unauthorized provisions.
Leano v. Leano (30 Phil 6120
Additional clauses or provisions after the signature in a NOTARIAL WILL invalidate the entire will itself.
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Who are the Credible Witnesses in the W ill? Credible witnesses have all the qualifications imposed by law. Must be able or competent to testifiy. They are the attesting or subscribing witnesses. Gonzales v. CA ,90 SCRA 183 “Credible witnesses” mean competent witnesses and not those who testify to facts from or upon hearsay. In the strict sense, the competency of a person to be an instrument witness to a will is determined by the statue, that is Art. 820 and 821, Civil Code, whereas hie credibility depends on the appreciation of his testimony and arises from the belief and conclusion of the court that said witness is telling the truth. It is not necessary to introduce prior and independent proof of the fact that the witnesses are “credible witnesses”, that is that they have good standing in the community and reputed to be trustworthy and reliable. c. Subscribing and attesting witnesses are called instrumental witnesses because they take part in the execution of an instrument or writing. d. Attesting witnesses must be the same marginal witnesses, otherwise, will is void. e. Purpose of marginal signature is for identification of the pages used and thus prevent fraud. Purpose is served signed on the right, top, left, bottom margins: Nayve vs. Mojal, (47 Phil 152) WHAT ARE THE QUALIFICATIONS OF WITNESSES TO WILLS? Qualifications of witnesses: 1. of sound mind 2. age of 18 or more 3. not blind, deaf or dumb 4. able to read and write 5. domiciled in the Philippines 6. has not been convicted, (by final judgment) of falsification of document, perjury, or false testimony Unlike in Election Law. In the Civil Code, there is difference between Domicile and Residence. Residence is a material fact, •
referring to the physical presence of a person in a place. Acquired by living in a place. A person can have 2 or more residences. Domicile can exist without actually living in the place as long as once residence has been established in one place, there be an intention to stay there permanently, even if residence is also established in some other place. Effect of Pardon: (for those convicted of falsification of document, perjury or false testimony. - if by reason of innocence, can already be a witness because no untrustworthiness or dishonesty - if act of executive grace or clemency, disqualification subsists because does not change the fact of dishonesty Notary public also disqualified to be a witness because he cannot acknowledge the will before himself (Cruz vs. Villasor [54 SRCA 31]) Witnesses must be competent at the time of attesting. Reason: there is nothing left to be done by the witnesses in order to comply with the requirements of the law regarding attestation. If there are only 3 attesting witnesses: if the attesting witness is a recipient of a legacy or device in the will he is attesting, or the spouse, parent, or child of such attesting witness is the recipient, the legacy to the attesting witness, his spouse, parent child or anyone claiming under the attesting witness, his spouse, parent, or child is void. But the qualification of the other person to attest the will is not affected and the rest of the will remain valid. If there more than 3 witnesses, the legacy or devise is valid. Reason: the invalidity of legacy or devise stems from his being an attesting witness. If more than 3 witnesses, it is already a surplusage. Compulsory heir who is also an attesting witness, can still get the legitime. Disqualified only with respect to the free portion given in excess of their legitime. •
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•
•
•
•
•
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WHAT ARE MARGINAL SIGNATURES? the signatures of the testator and the witnesses on each and every page of the will at the left margin. f. If no marginal signature on the 1 st page: If will has only one page, no marginal signatures are needed because logically, the page will already contain signatures of the testator and witnesses: Abangan vs. Abangan, (40 Phil 476) But if there is more than 1 page, 1 st page, as well as all the other pages, must be signed: Estate of Tampoy vs. Alberastine, (Feb 25, 1960). What is important is that each and every page bears the signatures of the testator and the witnesses (Nayve vs. Mojal, 47 Phil 152) Absence of marginal signature, if no signature appears on a page, is a FATAL DEFECT. Will is extrinsically invalid hence, cannot be admitted to probate. But see the case of:
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–
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–
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ICASIANO vs. ICASIANO (11 SCRA 720) The original of the will consisted of 5 pages but while signed at the end of each and every page, it did not contain the signature of one of the attesting witnesses on page 3 thereof, due to the simultaneous lifting of two pages in the course of the signing although the duplicate copy was signed by the testatrix and the attesting witnesses in each and every page. HELD: The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a single witness over whose conduct she had no control, where the purpose of the law is to guarantee the identity of the testament and its component pages is sufficiently attained, no intentional or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. HOW SHOULD THE PAGES OF THE WILL BE NUMBERED? Numbered correlatively in letter (one, two, three, etc) but use Arabic numerals (Unson vs. Abella, 43 Phil 494), or letters ABC (Aldaba vs. Roque, 43 Phil 378), or numbers 123 (Nayve vs. Mojal), will not validate the will. •
Law says on the upper part but in case of Fernandez vs. de Dios, 46 Phil 922, paging may be placed at the top, bottom, or even at the left or right margin, or even in the text itself. Document has 4 pages, 1 st 3 pages contain dispositions, 4 th page contains attestation clause. If only the 1 st 3 contain the pages but attestation clause says, this will consist of 3 pages excluding this attestation clause, it is evident that the page containing the attestation clause is the 4 th page. (Fernandez vs. Vergel de Dios) If sole page is unnumbered. Will is valid because the reason for requirement no longer applies. Loss or removal of the sheet cannot be hidden – Abangan vs. Abangan(40 Phil 476) •
•
•
WHAT IS THE PURPOSE OF NUMBERING? Purpose of numbering: 1. to guard against fraud 2. to forestall any attempt to suppress or substitute any of the pages 3. to prevent any increase or decrease of pages 4. to afford means of detecting the loss of any of its pages •
WHAT IS THE MEANING OF “TO ATTEST?” The act of witnessing the testator and the witnesses sign the will. DISTINGUISH ATTESTATION FROM SUBSCRIPTION? Attestation
Subscri
1. Consists in witnessing the testator's execution of the will in order to see and take note mentally that those things are done which the statute requires for the execution of a will and that the signature of the testator exists as a fact. It is the act of witnesses not that of the testator although it necessarily involves the act of the testator in executing the will and requesting the witnesses to act as such.
1. The the s identifi was ex
2. Mec 2.Mental act, act of the senses 3. Purp 3. Purpose is to render available proof of the that th authenticity of the will and its due execution. by th witness
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was ofsigned is as clearly established execution the will embodied in the by the uncontradicted testimony of both Atty. attestation has been performed. Villanueva and Herminio Maravilla; and that detail proves beyond doubtas that each 4. To attest a will is to know that it was 4.To subscribe a paper published a will is one of parties concerned did sign the presence published as such and to certify the facts only tothe write on the same paper the in names all the others. It should remembered, in required to constitute an actual and legal of the ofwitnesses, for the sole be purpose of this connection, that the test is not whether the publication. identification. witness did see the signing of the will but whether he was in position to see if he chose to WHAT IS THE MEANING OF “IN THE PRESENCE?” do so. If testator is blind, enough that signing or In the presence, with respect to the action is within the range of the other senses witnesses does not necessarily require actual like hearing, touch, etc. as long as testator seeing but possibility of seeing or sensing realizes what is being done. TEST OF AVAILABLE without any physical obstruction. SENSES. Generally Accepted Tests of Presence (Jaboneta vs. Gustillo, 55 Phil 541) - Does not matter that witnesses signed ahead 2. test of vision of or after the testator as long as signing is 3. test of position sufficiently contemporaneous and made on 4. test of mental apprehension one occasion (same time and place) and as 5. test of available senses part of one single transaction. (Gabriel vs. Mateo, 51 Phil 216.) JABONETA vs. GUSTILLO (5 Phil 541) Testator has his back turned. Signing was done in his presence since he could have cast his Purpose of requiring presence to avoid eyes in the proper direction. fraudulent substitution of the will and to make it more difficult the invention of false testimony NERA vs. RIMANDO (18 Phil 450) by the witnesses since they may be the There was a curtain separating the testator witnesses of one another. and some witnesses from other witnesses. Not in the presence so will not valid. What is an attestation clause? •
•
MARAVILLA vs. MARAVILLA (37 SCRA 672) It was but natural that witness Mansueto should be positive about his own signature, since he was familiar with it. He had to be less positive about Digna Maravilla's (testator) signature since he could not be closely acquainted with the same for aught the record shoes, the signing of the will was the only occasion he saw her sign: he had no opportunity to study her signature before or after execution of the will. Furthermore, he witnessed Digna's signing not less than 14 years previously. To demand that in identifying Digna's signature Mansueto should display a positiveness equal to the certainty shown by him in recognizing his own, exceeds the bounds of the reasonable. That Manseuto, Hernaez and Buenaflor, together with the testatrix and the lawyer, sat next to one another around one table when the will
That clause of an ordinary or notarial will wherein the witnesses certify that the instrument has been executed before them and the manner of the execution of the same. It is a separate memorandum or record of the facts surrounding the conduct of execution and once signed by the witnesses, it gives affirmation to the fact that compliance with the essential formalities required by law has been observed. Nature: Attestation clause is a declaration made by the witnesses, not by the testator Tenafrancia v. Abaja, 87 Phil 139 hence, only signatures of witnesses are required in the attestation clause. Witnesses must know the recitals of the clause but need not need to know the content of the will itself.
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Strictly speaking, not part of the will because does not contain dispositions. a. Purpose: To preserve in permanent form a record of the facts attending the execution of the will, so that in case of death, absence or failure of the memory of the subscribing witnesses, or other casualty, the due execution may still be proved Leynez v. Leynez, 68 Phil 745 b. Subscribing witnesses attest to: 1. The genuineness of the signature of the testator 2. The due execution of the will as embodied in the attestation clause (capacity of the testator absence of undue influence etc) Distinguish Marginal Signature from Attesting Signature Azuela v. CA, G.R. No.122880, April 12, 2006 The three named witnesses to the will affixed their signatures on the left hand margin of both the pages of the will, but not at the bottom of the attestation clause. Is the will valid? Held: No! While the signatures of the instrumental witnesses appear on the left hand margin of the will, they do not appear at the bottom of the attestation clause which after all consists of their averments before the notary public. Cagro v. Cagro is material on this point. As in this case, “the signatures of the three witnesses to the will do not appear at the bottom of the attestation clause, although the page containing the same is signed by the witnesses on the left-hand margin.” While three Justices considered the signature requirement had been substantially complied with, a majority of six, speaking through Chief Justice Paras, ruled that the attestation clause had not been duly signed, rendering the will fatally defective. There is no question that the signatures of the three witnesses to the will do not appear at the bottom of the attestation
clause, although the page containing the same is signed by the witnesses on the left-hand margin. We are of the opinion that the position taken by the appellant is correct. The attestation clause is a memorandum of the facts attending the execution of the will required by law to be made by the attesting witnesses, and it must necessarily bear their signatures. An unsigned attestation clause cannot be considered as an act of the witnesses, since the omission of their signatures at the bottom thereof negatives their participation. The petitioner and appellee contends that signatures of the three witnesses on the left-hand margin conform substantially to the law and may be deemed as their signatures to the attestation clause. This is untenable, because said signatures, are in compliance with the legal mandate that the will be signed on the left-hand margin of all its pages. If an attestation clause not signed by the three witnesses at the bottom thereof, be admitted as sufficient, it would be easy. To add such clause to a will on a subsequent occasion and in the absence of the testator and any or all of the witnesses. The Court today reiterates the continued efficacy of Cagro. Article 805 particularly segregates the requirement that the instrumental witnesses sign each page of the will from the requisite that the will be “attested and subscribed by the instrumental witnesses. The respective intents behind these two classes of signature are distinct from each other. The signatures on the left-hand corner of every page signify, among others, that the witnesses are aware that the page they are signing forms part of the will. On the other hand, the signatures to the attestation clause establish that the witnesses are referring to the statements contained in the attestation clause itself. Indeed, the attestation clause is separate
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and apart from the disposition of the will. An unsigned attestation clause results in an unattested will. Even if the instrumental witnesses signed the left-hand margin of the page containing the unsigned attestation clause, such signatures cannot demonstrate these witnesses undertakings in the clause, since the signatures that do appear on the page were directed towards a wholly different avowal. The Court may be more charitably disposed had the witnesses in this case signed the attestation clause itself, but not the lefthand margin of the page containing such clause. Without diminishing the value of the instrumental witnesses‟ signatures on each and every page, the fact must be noted that it is the attestation clause which contains the utterances reduced into writing of the testamentary witnesses themselves. It is the witnesses, and not the testator, who are required under Article 805 to state the number of pages used upon which the will is written; the fact that the testator had signed the will and every page thereof; and that they witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. The only proof in thewill that the witnesses have stated these elemental facts would be their signatures on the attestation clause. What matters should Attestation Clause?
be
stated
in
the insertion of the number of pages in the attestation clause. Yet the blank was never filled in; hence, the requisite was left uncomplied with. Held: The failure of the attestation clause to state the number of pages on which the will was written remains a fatal flaw, despite Article 809 (substantial compliance). The purpose of the law in requiring the clause to state the number of pages on which the will is written is to safeguard against possible interpolation or omission of one or some of its pages and to prevent any increa ore decrease in the pages. The failure to state the number of pages equates with the absence of an averment on the part of the instrumental witnesses as to how many pages consisted the will, the execution of which they had ostensibly witnessed and subscribed to. Following Caneda, there is substantial compliance with this requirement if the will states elsewhere in it how many pages it is comprised of, as was the situation in Singson v. Taboada. However in this case, there could have been no substantial compliance with the requirements under Article 805 since there is no statement in the attestation clause or anywhere in the will itself as to the number of pages which comprise the will. Taboada v. Rosal, 118 S 195, G.R. No. L-36033, November 5, 1982
the
1. The number of pages used upon which the will is written. Azuela v. CA G.R. No. 122880, April 12, 2006 The petitioner argues that the requirement under Article 805 of the Civil Code that the number of pages used in a notarial will be stated in the attestation clause is merely directory, rather than mandatory, and thus susceptible to what he termed as the substantial compliance rule. As admitted b petitioner himself, the attestation clause fails this requisite, a space having been allotted for
The attestation clause failed to state the number of pages used in writing the will. This would have been a fatal defect were it not for the fact that, in this case, it is discernible from the entire will that it is really and actually composed of only two pages duly signed by the testatrix and her instrumental witnesses. As earlier stated, the first page which contains the entirety of the testamentary dispositions is signed by the testatrix at the end or at the bottom while the instrumental witnesses signed at the left margin. The other page hich is marked as “Pagina Dos” comprises the attestation clause and the acknowledgment. The acknowledgment itself states that “This Last
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Will and Testament consists of two pages including this page.”
the presence of the testator and of one another.
Testate Estate of the Late Alipio Abada v. Abaja, G.R. No. 147145, January 31, 2005 Caponong-Noble proceeds to point out several defects in the attestation clause. Caponong-Noble alleges that the attestation clause fails to state the number of pages on which the will is written. The allegation has no merit. The phrase which means in the left margin of each and every one of the two pages consisting of the same shows that the will consists of two pages. The pages are numbered correlatively with the letters One and two as can be gleaned from the phrase “las cuales estan paginadas correlativamente con las letras uno y dos. 2. 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 only; Garcia v. Lacuesta (90 Phil. 489): A lawyer wrote the name of testator Antero Mercado. Testator placed a cross after his name. Because the cross was not the customary signature of testator, the will is deemed to have been signed by the lawyer for the testator. Hence, attestation must state that will is signed by another under express direction of testator – Exam Question Payad v. Tolentino (62 Phil 848): not required to state that another person was requested by testator to sign for him because will is thumbmarked by testator. Need not state that the person caused by the testator to sign signed in the testator‟s presence (Jallores v. Interino, L-42463) 3. The signing by the testator or by the person requested by him was in the presence of the instrumental witnesses. 4. That the instrumental witnesses witnessed and signed the will and all the pages thereof in
Testate Estate of the Late Alipio Abada v. Abaja, G.R. No. 147145, January 31, 2005 1. Caponong-Noble further alleges that the attestation clause fails to state expressly that the testator signed the willand its every page in the presence of three witnesses. The English translation of the first sentence of the attestation clause reads: „Subscribed and professed by the testator Alipio Abada as his last will and testament in our presence, the testator having also signed it in our presence on the left margin of each and every one of the pages of the same.” The attestation clause clearly states that Abada signed the will and its every page in the presence of the witnesses. 2. However, Caponong-Noble is correct in saying that the attestation clause does not indicate the number of witnesses. On this point, the Court agrees with the appellate court in applying the rule on substantial compliance in determining the number of witnesses. While the attestation clause does not state the number of witnesses, a close inspection of the will show sthat three witnesses signed it. We rule to apply the liberal construction in the probate of Abada‟s will. Abada‟s will clearly shows four signatures, that of Abada and of three other persons. It is reasonable to conclude that there are three witnesses to the will. The question on the number of the witnesses is answered by an examination of the will itself and without the need for presentation of evidence aliunde. The court explained the extent and limits of the rule on liberal construction, thus: The so called liberal rule does not offer any puzzle or difficulty, nor does it open the door to serious consequences. The later decisions dot ell us when and where to stop , they draw the dividing line with precision. They do not allow evidence aliunde tofill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe in the will, an exploration within its
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convines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results.
3. Finally, Caponong-Noble alleges that the attestation clause does not expressly state the circumstances that the witnesses witnessed and signed the will and all its pages in the presence of the testator and of each other. This court has ruled: Precision of language in the drafting of an attestation clause is desirable. However, it is not imperative that a parrot-like copy of the words of the statute be made. It is sufficient if fro the language employed it can reasonably be deduced that the attestation clausefulfills what the law expects of it. The last part of the attestation clause states “en testimonio de el l, cada uno de nosotros to firmamos en presencia de nosotros y del testador.” In english, this means “in its witness, every one of us also signed in our presence and of the testator.” This clearly shows that the attesting witnesses witnessed the signing of the will of the testator and that each witness signed the will in the presence of one another and of the testator.
What language is Used in the Attestation Clause? 1. Preferably language or dialect known to the witnesses
voluntarily executed the will and that they understood its contents.
Meaning of to acknowledge: to own as genuine to avow or admit.
Azuela v. CA G.R. No. 122880, April 12, 2006 Yet there is another fatal defect to the will on which the denial of this petition should also hinge. The requirement under Article 806 that “every will must be acknowledged before a notary public by the testator and the witnesses” has also not been complied with. The importance of this requirement is highlighted by the fact that it had been segregated from the other requirements under Article 805 and entrusted into a separate provision, Article 806. The non-observance of Article 806 in this case is equally critical as the other cited flaws in compliance with Article 805 and shouldbe treated as of equivalent import. In lieu of an acknowledgement, the notary public, Petronio Y. Bautista wrote “Nilagdaan ko at ninotario ko ngayong 10 ng Hunyo 10, 1931 dito sa Lungsod ng Maynila” By no manner of contemplation can those words be construed as an acknowledgment. An acknowledgment is the act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed. It involves an extra step undertaken whereby the signor actually declares to the notary that the executor of a document has attested to the notary that the same is his/her own free act and deed.
2. Language or dialect not known to the witness – can also be used but must be interpreted to the witness.
What is an acknowledgment before a Notary Public?
A statement made by the notary public that the testator and the witnesses have personally come before him, that they
It might be possible to construe the averment as a jurat, even though it does not hew to the usual language thereof. A jurat is that part of an affidavit where the notary certifies that before him/her, the document was subscribed and swornto by the executor. Ordinarily, the language of th3e jurat should avow that the document was subscribed and sworn before
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the notary public, while in this case, the notary public averred that he himself “signed and notarized” the document. Possibly though, the word “ninotario or notarized” encompasses the signing of and swearing in of the executors of the document, which in this case would involve the decedent and the instrumental witnesses. Yet even if we consider what was affixed by the notary public as a jurat, the will would nonetheless remain invalid, as the express requirement of Article 806 is that the will be “acknowledged”, and not merely subscribed and sworn to. The will does not present any textual proof, much less one under oath, that the decedent and the instrumental witnesses executed or signed the will as their own free act or deed. The acknowledgment made in a will provides for another all-important legal safeguard against spurious wills or those made beyond the free consent of the testator. An acknowledgment is not an empty meaningless act. The acknowledgment coerces the testator and the instrumental witnesses to declare before an officer of the law that they had executed and subscribed to the will as their own free act or deed. Such declaration is under oath and under pain of perjury, thus allowing for the criminal prosecution of persons who participate in the execution of spurious wills or those executed without the free consent of the testator. It also provides a further degree of assurance that the testator is of certain mindset in making the testamentary dispositions to those persons he/she designated in the will. It may not have been said before, but we can assert the rule, selfevident as it is under Article 806. A notarial will that is not acknowledged before a notary public by the testator and the witnesses is fatally defective even if it is subscribed and sworn to before a notary public.
1. He cannot acknowledge document before himself. He cannot split his personality into 2. Case: Cruz v. Villasor, November 26, 1973 2. Function of notary public is to guard against any illegal or immoral arrangements. Function would be defeated if he were on of the attesting witnesses because by then he would be interested in sustaining the validity of the wil as it directly involves himself and the validity of his own act.
Is the Notary Public required to know the contents of the will?
As a general rule, notary public is not required to read the will or know the contents thereof. Exception: If the testator is blind because the will has to be read onceby a subscribing witness and again by the notary public before whom the will is acknowledged.
Is failure to affix a documentary stamp in a n acknowledged will a fatal defect?
Failure to affix documentary stamp in the acknowledgment of the will. Nota fatal defect. Justrequire the parties to affix the documentary stamp. Case: Gabucan v. Judge Manta, 21 S 1056, January 28, 1980
What are theadditional requisites for a blind testator?
Reading is twice.
1. Once by one of the subscribing witnesses. 2. Once by the notary public. Can the Notary Public Instrumental Witnesses? No because:
be
one
of
the
Even if testator is blind, no requirement that notary public should be present during execution of will
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If testator is deaf-mute and also blind, generally cannot execute a will unless the contents of the will may be communicated to him in accordance with law. Article 808 applies also topersons who are incapable of reading wills like illiterate.
Alvarado v. Gaviola, 226 S 317 The testatrix was suffering from glaucoma by virtue of which her vision on both eyes were on capable of counting fingers at three feet. She designated a lawyer to draft her notarial will. After the final draft was completed, the lawyer distributed copies of the will to the three instrumental witnesses and to the notarypublic before whom the will was to be acknowledged. The lawyer who drafted the will read the will aloud in the presence of the testatrix, the three instrumental witnesses, and the notary public. The latter four just silently followed the reading with their own respective copies, previously furnished them. Upon being asked, the testatrix affirmed that the contents as read corresponded with her instructions. The signing and acknowledgment then took place. The probate was contested on the ground that the reading requirement under Article 808 of the New Civil Code was not complied with. Held: Article808 applies not only to blind testators but also to those who for one reason or another, are incapable of reading their wills. Hence, the will should have been read by th3e notary public and an instrumental witness. However, the spirit behind the law was served though the letter was not. Although there should be strict compliance with the substantial requirements of the law in order to insure the authenticity of the will, the formal imperfections should be brushed aside when they do not affect its purpose and
which, when taken into account, may only defeat the testator‟s will. Garcia v. Vasquez, 32 S 490 The declarations in court of the ophthalmologist as to the condition of the testatrix‟s eyesight fully establish the fact that her vision remained mainly for viewing distant objects and not for reading print; that she was at the time of the execution of the second will on December 29, 1960, incapable of reading and could not have read the provisions of the will supposedly signed by her. Upon its face, the testamentary provisions, the attestation clause and acknowledgment were crammed together into a single sheet of paper, apparently to save on space. Plainly, the testament was not prepared with any regard for the defective vision of Dona Gliceria, they typographical errors remained uncorrected thereby indicating that the execution thereof must have been characterized by haste. It is difficult to understand that so important a document containing the final disposition of one‟s wordly possession should be embodied in an informal and untidy written instrument; or that the glaring spelling errors should have escaped her notice. If she had actually retained the ability to read the purported will and had done so. The rationale behind the requirement of reading the will to the testator if he is blind or incapable of reading the will himself is to make the provisions thereof known to him, so that he may be able to object if they are not in accordance with his wishes. Where as in the 1960will there is nothing in the record to show that the requisites of Art. 808 of the Civil Code of the Philippines that “ if the testator is blind, the will shall be read to him twice,” have not been complied with, the said 1960 will suffer from infirmity that affects its due execution. How should the formalities be construed?
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1. Generally formalities in the execution of wills are strictly construed: Abangan v. Abangan, 40 Phil 476
2.Purpose: To close doors against fraud, bad faith, to avoid substitution, to guarantee authenticity of wills.
3. Compare with Article 788 on liberal interpretation. Article 788 talks about liberal interpretation of doubts in the dispositions. Interpretation of body or contents of will should not extend to the manner of execution or formalities. 4. But will should not be so literally interpreted as to penalize the testator who was without fault where the purpose of the law is sufficiently attained. Icasiano v. Icasiano, 11 SCRA 720 The original of the will consisted of 5 pages but while signed at the end of each and every page, it did not contain the signature of one of the attesting witnesses on page 3 thereof, due to the simultaneous lifting of 2 pages in the course of the signing although the duplicate copy was signed by the testatrix and the attesting witnesses in each and every page. Held: The law should not be so strictly and literally interpreted as to penalize the testatrix on account of the inadvertence of a singe witness over whose conduct she had no control, where the purpose of the law is to guarantee the identity of the testament and its component pages is sufficiently attained, no intention or deliberate deviation existed, and the evidence on record attests to the full observance of the statutory requisites. WHAT IS THE PRINCIPLE OF SUBSTANTIAL COMPLIANCE? As long as purpose of attestation is served, the will should be given effect. Case: Alvarado vs. Gaviola (226 SCRA 317)
Substantial Compliance – when there has been an honest attempt to comply with all the requirements of the law but the compliance is only substantial not literal and the purpose sought to be attained by the law is accomplished though not strictly followed. Purpose: designed to attain the main objective in the liberalization of the manner of executing wills. Policy is to require satisfaction of legal requirements to guard against fraud and bad faith but without undue or unnecessary curtailment of testamentary privilege. Justice J.B.L. Reyes observed that if the rule is so broad that no matter how imperfect the attestation clause happens to be, the same could be cured by evidence aliunde or extrinsic execution. Also discussed in Caneda vs. CA (222 SCRA 781) Hence, the rule must be limited to disregarding those defects that can be supplied by an examination of the will itself: Eg. Whether the pages are consecutively numbered, whether the signatures appear in each and every page, whether there are 3 subscribing witnesses, etc. TESTATE ESTATE OF THE LATE ALIPIO ABADA vs. ABAJA (G.R. NO. 147145, JANUARY 31, 2005) [T]he so-called liberal rule does not offer any puzzle or difficulty, nor does it open door to serious consequences. The later decisions do tell us when and where to stop; they draw the dividing line with precision. They do not allow evidence aliunde to fill a void in any part of the document or supply missing details that should appear in the will itself. They only permit a probe into the will, an exploration within its confines, to ascertain its meaning or to determine the existence or absence of the requisite formalities of law. This clear, sharp limitation eliminates uncertainty and ought to banish any fear of dire results. Taboada vs. Rosal
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Caneda vs. CA (222 SCRA 784) – Actually talks “3 pages and he has signed the same and every page thereof, on the spaces provided for his signature, and on the left hand margin in the presence of the said testator and in the presence of each and all of us.” Void. Omits the statement that witnesses signed each and every page in the presence of each other. Article 809 can be applied where the defect can be cured and supplied by the text of the will or a consideration of matters apparent therefrom.
NOTE: IN BOTH DEFECTS OF FORM AND SUBSTANCE, LIBERAL ITERPRETATION APPLIES ONLY WHEN THE DEFECT CAN BE CURED BY INTRINSIC EVIDENCE
WHAT ARE THE REQUISITES FOR HOLOGRAPHIC WILLS? 1. Must be written in a language or dialect known to the testator (Art 804); 2. Entirely written by the testator; 3. Must be dated by him; 4. Must be signed by him; 5. Must be made with animus testandi;
Date of Will Purpose: (1) to provide against contingencies as that of 2 competing wills executed on same day or different dates – the will executed on the later date is considered as truly expressing last will; (2) to determine whether or not testator became insane on the day when will is made; (3) to determine if will is valid because there is a point in history wherein holographic wills are no allowed. Gen. Rule: should include the day, month and year What if date is indicated by implication? Eg. Christmas day of 2003. Case: Roxas vs. De Jesus, Jr. (Jan. 28, 1985) – will was allowed even if Feb 1961 because the contingencies guarded against are not present. Where should date appear? Anywhere. Eg. Top, bottom, body, signature, etc. Case: Labrador vs. CA (180 SCRA 120)
Signature Law says Full signature. Ideally, full first name and family name. But if the customary signature is a pseudonym or initial of first/lastname name and full first name/surname, also allowed as long as it is the full customary signature. But all initials are not allowed. Thumbmark not allowed because it is not the handwriting of testator. Time of signing: Signing may be done on a date subsequent to the execution of will Location of signature: at the end of will as evident in Art. 812 Can be made by a blind testator as long as qualified
Entirely written Must be wholly autographic or handwritten by testator himself. Purpose: efficient guaranty against all falsifications or alterations in the will. Easier to forge the signature of testator than forge the whole text or will. Mechanical drafting cannot be entrusted to third person. But a third person may draft a will and the testator may just copy the draft made by the third person. Will partly or wholly printed, typewritten, computerized is void. Even if only the date is typewritten, will is void. What if not handwritten? If testator has no hands, he can write by mouth or foot as long as the writing is done by testator himself. No attestation required. If there is any, a mere surplusage. If attestation is typewritten, still surplusage because attestation is strictly not part of will.
CAN THE TESTATOR ADD DISPOSITIONS AFTER HIS SIGNATURE IN A HOLOGRAPHIC WILL? Yes. The additional dispositions must be dated and signed by the testator. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates
33
the dispositions preceding it, whatever be the time of prior dispositions. WHAT IF THE ADDITIONAL DISPOSITION IS WRITTEN BY A THIRD PERSON? 1. If disposition is also signed and dated by the third person, with nor without testator‟s consent, disposition is void. It is independent of the will because it does not have the participation of the testator in the form of his signature. Will not affect the validity of the will itself. Consider as not written. 2. If signed and dated by the testator, whole will is void because by affixing the testator‟s signature and date, the additional dispositions become part of the will, not independent anymore. In this case, there are portions of the will not written by the testator. A holographic will must be entirely written, date and signed in the hand of the testator. Relate to Article 810. CAN THE TESTATOR MAKE INSERTIONS, CANCELLATIONS, ERASURES OR ALTERATIONS IN A HOLOGRAPHIC WILL? - Insertion, cancellation, erasure or alteration in a holographic will is not prohibited as long as authenticated by full signature of testator. - Reason: To prevent fraud. The execution of will is a personal act of the testator so it is but natural and logical that he alone can authenticate whatever correction may be found in the will. - Without authentication: Gen. Rule: Will is valid. Insertions, etc. considered as not made. - Exception: where insertions, etc. affect the essence of the will as when there is intent to revoke, then whole will is invalidated. Examples: 1. Kalaw vs. Relova (132 SCRA 237) – there was only one substantial provision which was altered by substituting the original heir with another heir. The alteration had no full signature. Held: whole will void because nothing remains in the will after the alteration invalidated.
2. Ajero vs. CA (236 SCRA 488, 1994) – effect of unauthorized alterations, cancellations, or insertions (insertions not authenticated by full signature of testator). If made on the date, or signature in a holographic will, entire will is void. WHAT IS A JOINT WILL? It is one where the same testamentary instrument is made the will of two or more persons and is jointly executed and signed by them. It is not necessarily mutual. Mutual or reciprocal wills – the separate wills of two persons which are reciprocal in their provisions, giving the separate property of each testator to the other. They are executed with a common intention on the part of the testators irrespective of whether there is a contract between them, although the contractual element is often involved. Also called twin will in American law. Mutual or reciprocal wills or twin wills may be embodied in separate instruments or in the same instrument. If in separate instruments, allowed. Give example: if in the same instrument, they become joint wills and are thus prohibited. In this case, they are called joint and mutual wills: Joint will is subject to attack wherever and whenever offered as an instrument. - Reasons: 1. destroys character of will as strictly personal act; 2. tends to convert a will into a contract; 3. runs counter to the idea that wills are essentially revocable (cannot burn, tear, etc.); 4. may subject one to undue influence and may induce parricide if reciprocal; 5. makes probate much more difficult in case of death of testators at different times. Exceptional circumstance when joint will was given effect. Case: Dela Cerna vs. Potot (12 SCRA 576) – a joint will was executed by husband and wife in favour of
34
niece. Husband died first, will was erroneously probated in 1939. Judgment became final because no appeal was made. Upon the subsequent death of wife, another petition for probate was made as far as the estate of wife is concerned. Lower Court declared will null and void but reversed by the CA on the ground that the decree of probate 1939 was conclusive on the due execution of will. Held: the decision in 1939 which became final has conclusive effect as the last will and testament of husband. Although erroneous because joint wills are not supposed to be allowed, it could no longer be corrected by reason of its finality. However, that erroneous allowance should only apply with respect to the estate of the husband. The finality of the 1939 decree should not extend to the estate of the wife which was then the one under consideration considering that a joint will is a separate will of each testator. Upon the wife‟s death, the joint will presented for probate must be examined and adjudicated de novo (anew). Even if the laws of other countries (Argentina, Brazil, France, mexico) allow joint wills and the will is executed in these countries, still, if it is a Filipino who executes the same, will is still void. If foreigner executes joint wills: 1. Abroad – if allowed in the law of place where he resides, or in the place of his nationality, (art. 816) or in the place of execution (art. 17) then will is considered valid in the Philippines. If one spouse is a Filipino, void as to Filipino, valid as to foreigner. 2. In the Philippines – valid under art. 817 if executed according to the law of their country which allows joint wills. But may be argued that void by reason of public policy that should prevail over Art. 817. WHAT LAWS GOVERN THE REVOCATION OF WILLS? 1) If made in the Philippines - follow Philippine laws regardless of domicile or nationality of the testator 2) If made outside the Philippines:
(c) By a non-resident (Filipino or alien) i. law of the place where the will was made; ii. law of the place of domicile (d) By a resident (Filipino or alien) i. law of the place of revocation ii. law of the place of domicile (Philippines) National law has no applicability in cases of revocation The testator must have testamentary capacity at the time of revocation
HOW IS REVOCATION EFFECTED? 1. By implication of law (Revocation by Operation of Law) 2. By some will, codicil, or other writing executed as provided in case of wills (Revocation by a Subsequent instrument) - Here, the new instrument must be admitted to probate before it can revoke the old will. Express revocation – when the subsequent instrument has a revocatory clause revoking the previous will. Implied revocation – the new will or codicil is completely inconsistent with the old will. 3. By burning, tearing, cancelling or obliterating the will with the intention of revoking it, by the testato0r himself, or by some other person in his presence, and by his express direction (Revocation by Overt Acts) - intent must concur with overt acts - overt acts may not be limited to burning, tearing, cancelling or obliterating because in the case of Roxas vs. Roxas 48 O.O. 2177 , the court impliedly allowed crumpling as one of the overt acts provided there is animo revocandi. WHAT IS THE DOCTRINE OF ABSOLUTE REVOCATION? - a probated new will, although valid, amy become inoperative or ineffective due to the incapacity of the heirs, devisees or legatees. This fact notwithstanding, the revocation of the previous will remains effective. The reason is that the revoking will
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is valid except inoperative.
that
it
was
rendered
WHAT IS THE DOCTRINE OF DEPENDENT RELATIVE REVOCATION? - where the act or destruction is connected to the making of a will so as to squarely raise the inference that the testator meant the revocation of the old would depend upon the efficacy of the new disposition and if for any reason, the new will intended to be made as a substitute is inoperative, the revocation fails and the original will is in full force and effect. WHAT IS THE PRINCIPLE OF INSTANTER? - if a valid will is expressly revoked by a second will and the second will is itself revoked, the first will is not revived. Reason: revocation takes effect immediately because it is not testamentary in character.
-
The re-establishment of validity by operation of law of a previously revoked will. Examples: - When a valid will is impliedly revoked by a second will, and the second will is itself revoked, the first will is revived (application of the doctrine of dependent relative revocation); - Preterition annuls the institution of heirs. But if the preterited heir dies ahead of the testator, the institution is revived without prejudice to the right of representation. WHAT IS “PROBATE”?
“Probate” is a special proceeding to establish the validity of a will. WHAT ARE THE BASIC PRINCIPLES IN PROBATE? 1. PROBATE IS MANDATORY
WHAT IS REPUBLICATION OF WILLS? - the re-establishment by the testator of a previously revoked will or one invalid for want of proper execution as to form or for other reasons, so as to give validity to said will. If a will is void as to form due, to nonobservance of formalities, the only way to revive the will is by express republication or republication by reexecution. Meaning, the will must be executed anew, this time, complying with the formalities. If a will is void but not as to form, such as when the testator had no testamentary capacity at the time it was executed, or the will was revoked, republication can be effected by re-execution or also by implied republication or republication by reference. Here, there is no need to copy the entire provisions of the old will. Mere reference made in the new will or codicil to the existence of the old will suffices.
WHAT IS REVIVAL OF WILLS?
MANINANG vs. CA (114 SCRA 478) – because public policy requires it for unless the will is probated and notice thereof given to the whole world, the right of a person to dispose of his property by will may be rendered nugatory. VDA. DE KILAYKO vs. JUDGE TENGCO [G.R. NO. L-45425. MARCH 27, 1992.] Until probated, a will cannot be used or given in evidence as the foundation of a right or title to real or personal property. Thus, the rule is that there can be no valid partition among the heirs till after the will has been probated, but this rule presupposes that the properties to be partitioned are the same properties embraced in the will. 2. ESTOPPEL AND PRESCRIPTION WILL NOT APPLY IN PROBATE ALSUA-BETTS vs. CA (July 30, 1979) – principle of estoppels is not applicable in probate proceedings.
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IN RE ESTATE OF PILAPIL (72 Phil 545) – the right to ask probate does not prescribe. 3. PROBATE IS LIMITED TO VALIDITY OF THE WILL
THE
EXTRINSIC
Matters resolved in probate (Dorotheo vs. Court of Appeals) 1. Whether the instrument offered for probate is the last will and testament of the decedent – a question of identity; 2. Whether the will was executed according to the formalities required by law – a question of due execution; 3. Whether the testator had testamentary capacity at the time of execution – a question of testamentary capacity. Hence, probate court no power to pass upon intrinsic validity or legality of provisions in the will, such as: a. legacy is void; b. invalid disinheritance; c. a certain persom has no right to inheritance; d. impairment of legitime; e. filiation; f. title to property. Exceptions:
MAGALLANES vs. KAYANAN (Jan. 20, 1976) : Ownership may be passed upon in probate when: a. the parties are all heirs and they voluntarily submit the matter to the court; b. the ownership is passed upon to determine whether or not the property involved is part of the estate
CAYETANO vs. LEONIDAS (May 30, 1984) The third issue raised deals with the validity of the provisions of the will. As a general rule, the probate court‟s authority is limited only to the extrinsic validity of the will, the due execution thereof, the testatrix‟s testamentary capacity and the compliance with the requisites or solemnities prescribed by law. The intrinsic validity of the will normally comes only after the court has declared that the will has been duly authenticated. However, where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue. (Maninang vs. Court of Appeals, 114 SCRA 478).
As to proof of filiation: 1. May be given if it is essential to establish which of the 2 wills has been revoked; 2. To prove prima facie whether or not an oppositor or intervenor who claims to be related to the testator can be allowed to intervene in the probate proceedings for the purpose of protecting his rights.
But the final decision on these matters may be threshed out in another proceeding. NOT RES JUDICATA.
DE LEON vs. COURT OF APPEALS (G.R. NO. 128781, August 6, 2002) A probate court, whether in a testate or intestate proceeding, can only pass upon questions of title provisionally. The rationale therefore and the proper recourse of the aggrieved party are expounded in Jimenez v. Court of Appeals: “The patent reason is the probate court‟s limited jurisdiction and the principle that questions of title or ownership, which result in inclusion or exclusion from the inventory of the property, can only be settled in a separate action. “All that the said court could do as regards said properties is determine whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is a dispute as to the ownership, then the opposing parties and the administrator
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have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.” [24]
the title thereto but such determination is not conclusive and is subject to the final decision in a separate action regarding the ownership which may be instituted by the parties.
Further, in Sanchez v. Court of Appeals, we held:
In the Rodriguez case, the Court distinguished between an order of collation and an order of exclusion from or inclusion in the estate‟s inventory, thus:
“[A] probate court or one in charge of proceedings whether to state or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are claimed to belong to outside parties. All that the said court could do as regards said properties is to determined whether they should or should not be included in the inventory or list of properties to be administered by the administrator. If there is no dispute, well and good, but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for a final determination of the conflicting claims of title because the probate court cannot do so.” [25] Guided by the above jurisprudence, it is clear that the Court of Appeals committed an error in considering the assailed Order dated November 11, 1994 as final or binding upon the heirs or third persons who dispute the inclusion of certain properties in the intestate estate of the deceased Rafael Nicolas. Under the foregoing rulings of the Court, many aggrieved party, or a third person for that matter, may bring an ordinary action for a final determination of the conflicting claims. For all intents and purposes, said Order is a mere order including the subject properties in the inventory of the estate of the decedent. The Court held in Valero Vda. De Rodriguez v. Court of Appeals that the order of exclusion (or inclusion) is not a final order; that it is interlocutory in the sense that it did not settle once and for all the title to the subject lots; that the prevailing rule is that for the purpose of determining whether a certain property should or should not be included in the inventory, the probate court may pass upon
“We hold further that the dictum of the court of Appeals and the probate court that the two disputed lots are not subject to collation was a supererogation and was not necessary to the disposition of the case which merely involved the issue of inclusion in, or exclusion from, the inventory of the testator‟s estate. The issue of collation was not yet justiciable at that early stage of the testate proceeding. It is not necessary to mention in the order of exclusion the controversial matter of collation. “Whether collation may exist with respect to the two lots and whether Mrs. Rustia‟s Torrens titles thereto are indefeasible are matters that may be raised later or may not be raised at all. How those issues should be resolved, if and when they are raised, need not be touched upon in the adjudication of this appeal. 4. PROBATE IS A PROCEEDING IN REM ATILANO MERCADO VS. SANTOS (66 Phil 216) – probate proceeding is a proceeding in rem. The judgement of the court is binding upon everybody even against the State. 5. PROBATE IS CONCLUSIVE AS TO THE DUE EXECUTION OF WILLS
Due execution of will and testamentary capacioy of testator acquire the character of res judicata. ATILANO MERCADO vs. SANTOS (66 Phil 216) – After final judgment on the probate, proponent was prosecuted for
38
allegedly having presented a forged will. The case for forgery could not propsper because judgment on probate was conclusive as to the due execution of the will. WHO MAY PROCEEDINGS? -
INTERVENE
IN
PROBATE
in order that a person may be allowed to intervene in a probate proceeding, he must have an interest in the estate or in he will, or in the property to be affected by it. Must be an interested party or one who would be benefitted by the estate such as an heir or one who has a claim against the estate like a creditor, and whose interest is material and direct not merely incidental or contingent. LEVISTE vs. COURT OF APPEALS (G.R. NO. L-29184 JANUARY 30, 1989) The petitioner, a practicing attorney, entered into a written agreement with Rosa del Rosario to appear as her counsel in a petition for probate of the holographic will of the late Maxima C. Reselva. Under the will, a piece of real property was bequeathed to Del Rosario. It was agreed that petitioner‟s contingent fee would be thirty-five per cent (35%) of the property that Rosa may receive upon the probate of the will. On August 20, 1965, Leviste received a letter from Ms. Del Rosario, informing him that she was terminating his services as her counsel due to “conflicting interest.” On September 20, 1965, petitioner filed a “Motion to Intervene to protect His Rights to Fees for Professional Service.”
On November 23, 1966, Del Rosario and Rita Banu, the special administratrix-legatee, filed a “Motion to Withdraw Petition for Probate” alleging that Del Rosario waived her rights to the devise in her favor and agreed that the De Guzman brothers and sisters, who opposed her
petition for probate, shall inherit all the properties left by the decedent. Nonetheless, her petition for probate, shall inherit all the properties left by the decedent. Nonetheless, on August 28, 1967, the court disallowed the will, holding that the legal requirements for its validity were not satisfied as only two witnesses testified that the will and the testatrix‟s signature were in the handwriting of Maxima Reselva. The petitioner appealed contending that by virtue of his contract of services with Del Rosario, he is a creditor of the latter, and that under Article 1052 of the Civil Code he has a right to accept for his client Del Rosario to the extent of 35% thereof the devise in her favor (which she in effect repudiated) to protect his contingent attorney‟s fees. The argument is devoid of merit. Article 1052 of the Civil Code does not apply to this case. That legal provision protects the creditor of a repudiating heir. Petitioner is not a creditor of Rosa del Rosario. The payment of his fees is contingent and dependent upon the successful probate of the holographic will. Since the petition for probate was dismissed by the lower court, the contingency did not occur. Attorney Leviste is not entitled to his fee. Furthermore, Article 1052 presupposes that the obligor is an heir. Rosa Del Rosario is not a legal heir of the late Maxima C. Reselva. Upon the dismissal of her petition for probate of the decedent‟s will, she lost her right to inherit any part of the latter‟s estate. There is nothing for the petitioner to accept in her name. Petitioner was not a party to the probate proceeding in the lower court. He had no direct interest in the probate of the will. His only interest in the estate is an indirect interest as former counsel for a prospective heir. In Paras v. Narciso, 35 Phil. 244, one who is only indirectly interested in a will may not interfere in its probate. Thus: “… the reason for the rule excluding strangers from contesting the will, is not that thereby the court maybe prevented from learning facts which would justify or necessitate a denial of probate, but rather that the courts and the litigants should not be molested by the intervention in the proceedings of persons with no interest in the estate which would entitle
39
them to be heard with relation thereto Paras v. Narciso, 35 Phil. 244, 246.”
A. Word “shall” connotes an imperative obligation and is inconsistent with the idea of discretion.
Who will testify During Probate? -Rule 76, Rules of Court Notarial Will Uncontested -testimony of one subscribing witness Contested -all the subscribing witnesses and the notary public must testify -If insane, dead, absent in the Philippines, testify against due execution, do not remember having attested, or of doubtful credibility, testimony of other witnesses may be allowed.
Holographic Will -testimony of one witness who knows the signature and handwriting of testator expert testimony may be resorted to. -at least 3 who knows signature and handwriting -expert testimony
Is it Mandatory to Present the 3 Witnesses Mentioned if the Holographic Will is Contested? In the case of Azaola v. Singson not mandatory because no witnesses are required during execution of holographic wills, hence, it is obvious that the existence of witnesses possessing the requisite qualification is a matter beyond the control of the proponent of will. Mandatory only in notarial wills because at least 3 witnesses are required during the execution of will. BUT in the case of Codoy v. Caluga, 312 SCRA 333, 1999, 3 witnesses are mandatory in contested holographic will. Reasons:
B. To prevent the possibility that unscrupulous individuals who, for their benefit, will employ means to defeat the wishes of the testator. Since the possibility of a false document being adjudged as the will cannot be eliminated, if the will is contested, at least 3 of the required witnesses should declare that the holographic will is in the handwriting and signature of testator. Can the will be probated in the absence of a copy presented in Court? In case of notarial wills: YES. Even if there is no copy of the will, the will may still be probated if its contents are clearly and distinctly proved by at least 2 credible witnesses. In case of holographic wills: NO! In holographic wills, there is no guaranty of the truth and veracity of the will from the mere testimony of witnesses because these witnesses are not present during the execution of the will. The law regards the document itself as material proof of authenticity, and as its own safeguard, since, from the document itself, it could be demonstrated whether or not it is in the hands of the testator himself. Witnesses may be mistaken in their opinion as to the handwriting of the testator or they may deliberately lie. Oppositors may present contradictory evidence, such as testimonies of other expert witnesses or other witnesses who know the handwriting and signature of the testator, or writings or letters in the handwriting and signature of the testator. In view of such contradictory evidence, the court may use its own visual sense and decide in the face of the document, whether it has indeed been written by the testator. Thus, if the will is holographic, there must at least be a copy. Otherwise, the will cannot be admitted to probate. Rodelas v. Aranza, 119 SCRA 16
40
Photostatic copy of the holographic will may be probated. Carbon copy also allowed. What are the Grounds for Disallowance of Wills? Article 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with (Arts. 804-809); (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats (Arts. 1334 and 1335); (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud (must refer to the nature of the instrument or its contents); (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. Add: If the will was expressly revoked. -
The grounds are exclusive. No other grounds can serve to disallow will.
Ortega v. Valmonte, December 16, 2005
G.R.
No.
157451,
In 1980, Placido finally came home to stay in the Philippines, and he lived in the house and lot which he owned in common with his sister Ciriaca Valmonte and titled in their names in TCT 123468. Two years after his arrival from the United States and at the age of 80 he wed Josefina who was then 28 years old, in a ceremony solemnized by Judge Perfecto Laguio, Jr. On February 5, 1982, Placido executed a notarial last will and testament
written in English and consisting of 2 pages, and dated June 15, 1983 but acknowledged only on august 9, 1983. The first page contains the entire testamentary dispositions and a part of the attestation clause, and was signed at the end or bottom of that page by the testator and on the left hand margin by the three instrumental witnesses. The second page contains the continuation of the attestation clause and the acknowledgement, and was signed by the witnesses at the end of the attestation clause and again on the left hand margin. It provides in the body that: 2. I give, devise and bequeath unto my loving wife, JOSEFINA C. VALMONTE, one half portion of the follow-described properties, which belongs to me as [co-owner]; 3. All the rest, residue and remainder of my real and personal properties, including my savings account bank book in USA which is in the possession of my nephew, and all others whatsoever and wherever found, I give, devise and bequeath to my said wife, Josefina C. Valmonte; 4. I hereby appoint my wife, Josefina C. Valmonte as sole executrix of my last will and testament and it is my will that said executrix be exempt from filing a bond; The allowance to probate of this will was opposed by Leticia on the grounds that: 1. Petitioner failed to allege all assets of the testator, especially those found in the USA 2. Petitioner failed to state the names, ages, and residences of the heirs of the testator; or to give them proper notice pursuant to law; 3. Will was not executed and attested as required by law and legal solemnities and formalities were not complied with; 4. Testator was mentally incapable to make a will at the time of the alleged execution he being in an advance state of senility; 5. Will was executed under duress, or the influence of fear or threats;
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6. Will was procured by undue and improper influence and pressure on the part of the petitioner and/or her agents and/or assistants; and/or
will only upon a showing of credible evidence of fraud. Unfortunately in this case, other than the self-serving allegations of petitioner, no evidence of fraud was ever presented.
7. Signature of testator was procured by fraud; or trick and he did not intend that the instrument should be his will at the time of affixing his signature thereto;
It is a settled doctrine that the omission of some relatives does not affect the due execution of a will. That the testator was tricked into signing it was not sufficiently established by the fact that he had instituted his wife, who was more than fifty years his junior, as the sole beneficiary; and disregarded petitioner and her family, who were the ones who had taken the cudgels of taking care of the testator in his twilight years.”
HELD: Petitioner does not dispute the due observance of the formalities in the execution of the will, but maintains that the circumstances surrounding it are indicative of the existence of fraud. Particularly, she alleges that respondent, who is the testator‟s wife and sole beneficiary, conspired with the notary public and the three attesting witnesses in deceiving Placido to sign it. Deception is allegedly reflected in the varying dates of the execution and the attestation of the will. Petitioner contends that it was highly dubious for a woman at the prime of her young life to almost immediately plunge into marriage with a man who was thrice her agexxx and who happened to be a Fil-American pensionado,” thus casting doubt on the intention of respondent in seeking the probate of the will. Moreover, it supposedly “defies human reason, logic and common experience,” for an old man with a severe psychological condition to have willingly signed a last will and testament. SC ruled: We are not convinced. Fraud “is a trick, secret device, false statement or pretense by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executes or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain willwhich,but for the fraud, he would not have made. We stress that the party challenging the will bears the burden of proving the existence of fraud at the time of its execution. The burden to show otherwise shifts to the proponent of the
Moreover, as correctly ruled by the appellate court, the conflict between the dates appearing on the will does not invalidate the document, “because the law does not even require that a notarial will xxx be executed and acknowledged on the same occasion.” More important, the will must be subscribed by the testator, as well as by three or more credible witnesses who must also attest to it in the presence of the testator and of one another. Furthermore, the testator and the witnesses must acknowledge the will before a notary public. In any event, we agree with the CA that “the variance in the dates of the will as to its supposed execution and attestation was satisfactorily and persuasively explained by the notary public and the instrumental witnesses.” Notably, petitioner failed to substantiate her claim of a “grand conspiracy” in the commission of a fraud. There was no showing that the witnesses of the proponent stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary are credible evidence of its due execution. Their testimony favouring it and the finding that it was executed in accordance with the formalities required by law should be affirmed, absent any showing of ill motives. What is “Institution of Heir”?
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-It is an act by virtue of which a testatordesignates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. What are the characteristics of an instituted Heir?
Nable v. Unson, 27 Phil. 73 Testator left property to her husband and after her husband dies, to her sisters and nieces, such as A (deceased) – 2 daughters
1. Testamentary heir as distinguished from legal or intestate heir. Different from devisee or legatee.
B (deceased) – 3 daughters
2. Continues the personality of testator but only in relation to inheritance without being personally liable for the debts of the testator.
D (alive) – no children
3. A natural person even if only a conceived child (as long as conditions under Art. 40 and 41 are present). But dispositions may be made in favor of juridical persons;
F (alive) – no children
4. Acquires rights limited to the disposable portion and cannot impair the legitimes, institution being a voluntary act, cannot be allowed to affect the legitimes.
C (alive) - widow
E (alive) – no children
Lower court divided into 6 parts based on the number of sisters. SC said should be divided into 9 parts because under Art. 847, those collectively designated are deemed individually instituted. -
If the intention of the testator was to collectively institute, he must express this clearly in the will. This intention cannot be proven by evidence outside of the will.
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This article, being one of institution, should only be applied to the free portion. Eg. Institutes his 2 children A and B and the 3 Children of X as heir to the estate worth 100,000. Answer: Get first the legitimes of A and B which is 50,000 each and the remaining 50,000 shall be divided equally among the 5.
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In institution in favor of brothers and sisters of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears.
-
Note: this is not the case in legal or intestate succession because those of the full blood get twice as much as those of the half blood. Reason: there is no will which will show the intention of
5. Presumed to have been instituted equally with the others unless a contrary intention appears. What are the Requisites for a Valid Institution? 1. The will must be extrinsically valid; 2. The institution must be intrinsically valid (no impairment of legitimes, heir must be certain or ascertainable,no preterition, etc.); 3. The institution must be effective (no predecease, repudiation, incapacity of heir) What is the principle of individuality? -It is when the testator institutes some heirs individually and others collectively as when he says, “I designate as my heirs A and B , and the children of C,” those collectively designated shall be considered as individually institute, unless it clearly appears that the intention of the testator was otherwise.
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the testator that he intended to give equal shares.
Principle of Simultaneity – when the testator calls to the succession a person and his children they are all deemd to have been instituted simultaneouslyand not successively.
What is the effect of the statement of a false cause in the institution?
General Rule: Statement of a false cause for the institution of heir shall not vitiate the institution. False cause shall be considered only as not written. Reason: cause or consideration not essential to institution. Real cause is the liberality or generosity of testator. Unlike in Revocation where false cause makes the revocation invalid In illegal cause, as long as there is another reason for the institution other than the illegal cause and this reason need not be stated in the will, institution is valid.
What is Preterition? -
It is the 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, which as a consequence, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.
Who can be Preterited? -
Compulsory heirs who are in the direct line, specifically ascendants and descendants, ad infinitum, and adopted children. The spouse cannot claim preterition because she is not a relative in the direct line Acain v. IAC, 155 SCRA 100.
What is the omission that results in Preterition? 1. The person is not an heir, not a devisee, not a legatee, thus, receives nothing by will Aznar v. Duncan 17 SCRA 590 2. No donation inter vivos was given to him 3. There is nothing which could be inherited by intestacy because the whole estate was distributed by will; 4. There is no prior delivery of presumptive legitime. Note: The omission may be intentional or unintentional. What is the effect of Preterition? -
The institution of heirs is annulled. Hence, distribute the estate in accordance with the rules on legal succession. 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 or representation
JLT Agro Inc. v. Antonio Balansag, G.R. No. 141882, March 11, 2005 Emerging as the crucial question in this case is Whether Don Julian had validly transferred ownership of the subject lot during his lifetime. The lower court ruled that he had done so through the Supplemental Deed. The appellate court disagreed, holding that the Supplemental Deed is not valid, containing as it does a prohibited preterition of Don Julian‟s heirs from the second marriage. Petitioner contends that the ruling of the Court of Appeals is erroneous. HELD: The contention of the Petitioner is wellfounded. Manresa defines preterition as the omission of the heir in the will, either by not naming him at all or, while mentioning him as father, son, etc., by not instituting him as heir without disinheriting him expressly, nor
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assigning to him some part of the properties. It is the total omission of a compulsory heir in the direct line from inheritance. It consists in the silence of the testator with regard to a compulsory heir, omitting him in the testament, either by not mentioning him at all, or by not giving him anything in the hereditary property but without expressly disinheriting him, even if he is mentioned in the will in the latter case. But there is no preterition where the testator allotted to a descendant a share less than the legitimes, since there was no total omission of a forced heir. In the case at bar, Don Julian did not execute a will since what he resorted to was a partition intervivos of his properties, as evidenced by the court approved Compromise Agreement. Thus, it is premature if not irrelevant to speak of preterition prior to the death of Don Julian in the absence of a will depriving a legal heir of his legitimes. Besides, there are other properties which the heirs from the second marriage could inherit from Don Julian upon his death. A couple of provisions in the Compromise Agreement are indicative of Don Julian‟s desire along this line. Hence, the total omission from inheritance of Don Julian‟s heirs from the second marriage, a requirement for preterition to exist, is hardly imaginable as it is unfounded. Seangio v. Reyes, November 27, 2006
G.R.
Nos.
140371-72,
On September 21, 1988, private respondents filed a petition for the settlement of the intestate estate of the late Segundo Seangio. Petitioners Dy Yieng, Barbara and Virginia, all surnamed Seangio, opposed the petition and contended among others that: Segundo left a holographic will, dated September 20, 1995, disinheriting one of the private respondents, Alfredo Seangio, for cause. In view of the purported holographic will, petitioners averred that in the event the decedent is found to hav left a will, the intestate proceedings are to be automatically suspended and replaced by the proceedings for the probate of the will. A petition for the probate of the holographic will of Segundo was filed by petitioners. They
reiterated that the probate proceedings should take precedence. The document that petitioners refer to as Segundo‟s holographic will is quoted, as follows: Kasulatan sa pag-aalis ng mana Tantunin ng sinuman: Ako si Segundo Seangio Filipino may asawa naninirahan sa 465-A Flores St., Ermita, Manila at nagtataglay ng maliwanag na pag-iisip at disposisyon ay tahasan at hayagang inaalisan ko ng lahat at anuman mana ang panganay kong anak na si Alfredo Seangio dahil siya ay nang lapastangan sa akin at isang beses siyang nagsalita ng masama sa harapan ko at mga kapatid niya na si Virginia Seangio labis kong kinasama ng loob at ssabe rin ni Alfredo sa akin na ako nasa ibabaw ngayon ngunit darating ang araw na ako nasa ilaim siya at siya nasa ibabaw. Labis kong kong ikinasama ng loob ang pag gamit ni Alfredo ng aking pangalan para makapangutang ng kuwarta siya at kanya asawa na si Merna de Los Reyes sa China Banking Corporation na million pesos at hindi nagbabayad ito ay nagdulot sa aking ng malaking kahihiyan sa mga may-ari at stockholders ng China Banking. At ikinagalit ko pa rin ang pagkuha ni Alfredo at ng kanyang asawa na mga customer ng Travel Center of the Philippines na pinangangasiwaan ko at ng anak ko na si Virginia. Dito ako nagalit din kaya gayon ayoko na bilangin si Alfredo ng anak ko at hayanan kong inaalisan ng lahat at anoman mana na si Alfredo at si Aflredo Seangio ay hindi ko siya anak at hindi siya makoha mana.
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Private respondents moved for the dismissal of the probate proceedings primarily on the ground that the document purporting to be the holographic will of Segundo does not contain any disposition of the estate of the deceased and thus does not meet the definition of a will under Article 783 of the Civil Code. According to private respondents, the will only shows an alleged act of disinheritance by the decedent of his eldest son, Alfredo, and nothing else; that all other compulsory heirs were not named nor instituted as heir, devisee or legatee, hence, there is preterition which would result to intestacy. Such being the case, private respondents maintained that while procedurally the court is called upon to rule only on the extrinsic validity of the will, it is not barred from delving into the intrinsic validity of the same, and ordering the dismissal of the petition for probate when on the face of the will it is clear that it contains no testamentary disposition of the property of the decedent. Held: With regard to the issue on preterition, the Court believes that the compulsory heirs in the direct line were not preterited in the will. It was, in the Court‟s opinion, Segundo‟s last expression to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between Segundo and his son, Alfredo. Considering that the questioned document is Segundo‟s holographic will, and that the law favors testacy over intestacy, the probate of the will cannot be dispensed with. Article 838 of the Civil Code provides that no will shall pass either real or personal property unless it is proved and allowed in accordance with the rules of Court. Thus, unless the will is probated, the right of a person to dispose of his property may be rendered nugatory.
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Types of Substitution
A. Simple substitution (direct substitution), which may be: 1. Vulgar – the testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should die before him, or should not wish, or should be incapacitated to accept the inheritance. 2. Brief – two or more persons may be substituted for one 3. Compendious – one substitute for two or more heirs. 4. Reciprocal – the instituted heirs are also the substitutes of each other. B. Fideicommissary (indirect substitution) – 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. What are the kinds of institution of Heirs? 1. Simple or pure -= not subject to any condition, term or burden 2. Conditional – (Arts. 871-877, 883-884) 3. With a term - (Arts. 878, 880881) 4. Modal – (Arts. 882-883) What is the rule with respect to impossible conditions?
What are the types of Substitution of Heirs?
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-
The impossibility may be relative or absolute and either will result in the deletion of the condition. Effect if impossible condition is attached to an obligationo or contract: Both the condition and the obligation/contract are void (Art. 1183 NCC) Reason: In Succession, condition is merely a mere accessory, not a consideration because the real consideration is the generosity or liberality of testator. In obligations, the consideration is no longer liberality. The condition becomes part of the consideration thus, the impossibility of teh concition goes into the considertaiton of the contract.
The exception is justified by sentimental considerations whereby the entry within the family of a person who takes the place of the deceased spouse in the family and in the enjoyment fo fthe property which originated from said deceased spouse through a subsequent marriage wiht the surviving spouse, is avoided. WHAT IS A DISPOSICION CAPTATORIA? Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void.
MICIANO vs. BRIMO (50 PHIL 867) Facts: The institution of the legatees in the will is subject to the condition that the legatees must respect the testator‟s will to distribute his property not in accordance witht he lawas of his nationality bu the laws of the Philippines. Held: Condition is void being contrary to law because it expressly ignores the testator‟s national law when, according to Art. 16 NCC such national law of the testator is the one to govern his testamentary dispositions. Said condition is considered not written and the institution of the legatees is valid and effective. IS A CONDITION NOT TO MARRY/REMARRY VALID? Gen. Rule: An absolute condition not to contract a first or subsequent marriage shall be considered as not written Exception: If such condition has been imposed on the widow or widowed by the deceased spouse or by the latter‟s ascendants or descendants. Rationale: It might result to immoral consequences where a person who wants to marry but is prohibited from doing so will end up having an adulterous relationship. Also, it has the effect of depriving a person of his inherent right to choose his own status.
The two dispositions must appear in the will Void because they make successional rights contractual
WHAT IS THE RULE WITH RESPECT TO TA NEGATIVE POTESTATIVE CONDITION? If the potestative condition imposed upon the heir is negative, or consists in not doing or not giving somthing, the heir acquires the right from the moment of death but heir is just required to furnish bond or security (Caucion muciana) that he will not fo or not give that which the testator prohibits. WHAT IS MODAL INTITUION? -this is an institution with a statement on: 1. object of the institution 2. application of the property 3. Imposition of charge COMPARE AND CONDITION?
CONTRAST
MODE
AND
Similarities : In both modes and condition (negative potestative) 1. 2.
There is a security requirement; There is a forfeiture provision ina return of principal and fruits
Differences:
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1. Mode does not suspend the efficacy of the rights to the succession while a condition suspends such efficacy 2. Mode is obligation except when it is for the exclusive benefit of the person concerned while a condition is never obligatory; 3. The demandability or extinction of a right depends on the fulfillment of the condition whereas in a mode, the right given is immediately demandable although subordinate to the subsequent fulfillment of the obligation expressed in the testamentary disposition. Rules of interpretation: 1. When there is doubt if it is a mode or condition: construed as modal following the principle that testamentary dispositions are acts of liberality. 2. When there is doubt as to the existence of a modal institution: not considered as a mode but merely as a suggestion or discussion which the heit may or may not follow, in keeping wit the nature of testamentary dispositions as acts of liberality. For a statement to be considered as a mode, it must have coercive or obligatory force. RABADILLA vs. CA (JUNE 29, 2000) In the Codicil of testatrix, Dr. Rabadilla was instituted as a devisee of Lot No. 1392 contained the following provisions among others: 1. Rabadilla shall have the obligation until he dies, every year to give to Belleza 100 piculs of sugar until Belleza dies; 2. Should Rabadilla die, his heir to whom he shall give Lot No. 1392 shall have the obligation to still give yearly, the sugar as specified to Belleza. 3. In the event that the lot is sold, leased, or mortgaged, the buyer, lessee, mortgagee shall have also the obligation to respect and deliver yearly sugar to Belleza. Should the command
be not respected Belleza shall immediately seize the lot and turn it over to the testarix near descendants. HELD: Not a case of simple substitution. In simple substitutions, the second heir takes the inheritance in default of the first heir by reason of incapacity, predecease or renunciation. The Codicil fo not provide that should Dr. Rebadilla default due to predecease, incapacity or renunciation, the testatrix‟s near descendants would substitute him. What the Codicil provides is that, should Dr. Jorge Rabadilla or his heirs not fulfill the conditions imposed int he Codicil, the property referred to shall be seizeddddd and turned over to the testanix‟s near descendants. Neither is there a fideicommissary substitution. In a fideicommissary substitution, the first heir is strictly mandated to preserve the propert and to transmit the same later to the second their. Here, the instituted heir is in fact allowed under the Codicil to alienate the property provided the negotiation is wih the near descendants or the sister of teh testatrix. Thus, a very important element of a fideicommissary substitution is lacking, the obligation clearly imposing upon the first heir, the preservation of the property and its transmission to the second heir. Also, the near descendants‟ right to inherit from the testatrix is not definite. The property will only pass to them should Dr. Rabadilla of his heirs not fulfill the obligation to deliver part of the usufruct to private respondent. Moreover, fideicommissary substitution is void if the first heir is not related by first degree to the second heir. In the case under scrutiny, the near descendants are not all related to the instituted heir, Dr. Rabadilla. Not a conditional institution. It is clear that the testatrix intended that the lot be inherited by Dr. Rabadilla. It is likewise clearly worded that the testatrix imposed an obligation on the said instituted heir and his successors-in-interest to deliver sugar to Belleza, during the lifetime of the latter. However, the testatrix did not make Dr. Rabadilla‟s inheritance and the effectivity
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of his institution as a devisee, dependent on the performance of the said obligation. It is clear though that should the obligation be not compiled wiht the property shall be turned over to the testatrix near descendants. Since testamentary dispositions are generally acts of liberality an obligation imposed upon the heir should not be considered a condition unless it clearly appears from the Will itself that such was the intention of the testator. In case of doubt, the institution should be considered as modal anot conditional. The manner of institution of Dr. Rabadilla is modal in nature because it imposes a charge upon the instituted heir without, however, affecting the efficacy of such institution. A “mode” imposes an obligation upon the heirrrrr or legatee but it does not affect the efficacy of his rights to the succession. On the other hand, in a conditional testamentary disposition, the condition must happen or be fulfilled in order for the heir to be entitled to succeed the testator. The condition suspends but does not obligate; and the mode obligates but does not suspend. To some extent, it is similar to a resolutary condition. WHAT IS LEGITIME? Legitime is tha part of the testator‟s property which he cannot dispose of because the law has reserved it for certain heirs who are therefore called compulsory heirs.
ILANO vs. CA 1994)
(G.R. No. 104376 February 23,
In this regard, Article 287 of the Civil Code provides that illegitimate children other than natural in accordance wih Article 269 and other than natural children by legal fiction are entitled to support and such successional rights as are granted in the Civil Code. The Civil Code has given these rights to them because the transgressions of social conventions committed by the parents should not be visited upon them. They were born wiht a social handicap and the law should help them to surmount the disadvantages facing them through the misdeeds of their parents. However, before Article 287 can be availed of, there must be a recognition of paternity either voluntarily or by court action. This arises from the legal principle that an unrecognized spurious child like a natural child has no rights from his parents of to their estate because his rights spring not from the filiation or blood relationship but from his acknowledgement by t he parent. In other words, the rights of an illegitimate child arose not because he was the true or rel child of his parents but because under the law, he had been recognized or acknowledged as such as child.
WHAT ARE THE LEGITIMES OF THE COMPULSORY HEIRS? Legitimate Alone – ½
Child
WHO ARE THE COMPULSORY HEIRS? 1. Legitime children and descendents with respect to their legitimate parets and ascendants; 2. In default of the foregoing, legitimate parents and ascendants with respect to their legitimate children and descendants; 3. The widow or widower; 4. Illegitimate children In all cases of illegitimate children, their filiation must be duly proved.
Parents Alone – ½
Surviving Spouse Alone – ½, 1/3, ½ Illegitimate Child alone – ½
1 Legitimate Child – ½ Surviving Spouse – ¼
2 or more legitimate children – ½ Surviving spouse – same as the shares of 1 legitimate child Illegitimate Children – 1/3 Surviving Spouse – 1/3 Legitimate parents – ½ Surviving Spouse – ¼ Illegitimate Children – ¼ Surviving Spouse – 1/8 Legitimate Parents – ½ Illegitimate Parents – ¼
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Surviving Spouse – ¼
CAN THE LEGITIME BE BURDENED? Gen. Rule: No burden, condition, charge, encumbrance imposed upon the legitime. Exceptions: a. Reserva Troncal – The legitime is subject to reservation in favor of the reservees b. Partition – The testator may prohibit partition of the property for a period not exceeding 20 years even if the property contitutes the legitime of the heirs. WHAT IS RESERVA TRONCAL? The process by which an ascendant who inherits by operation of law from his descendant whichthe latter may have acquired by gratuitous title from another ascendant or a brother or sister, is obliged by law to reserve such property for the benefit of third degree relatives who belong tot he line from whic the property came from: Purpose: to prevent the accidental transfer of property/wealth from one line to another line. WHO ARE THE PARTIES IN RESERVA TRONCAL? 1. Origin -The person from whom the reservable property comes from -Either an ascendant or (half) brother or sister of the prepositus 2. Prepositus -Person to whom the origin transfers the property gratuitously -The arbiter of the reserva because the prepositus may alienate or destroy the property and thus prevent the existence of the reserve 3. Reservor (Reservatario) -Ascendant of the prepositus - The transfer to the reservoir must be by operatoin of law either as legitimate or by intestatcy.
-The absolute owner of the property subject to the resolutory condition of existence of the 3rd degree relatives of the prepositus upon the reservor‟s death. 4. Reservees (Reservista) Belonging to the same line of the family as that of the origin Related to the prepositus in the 1st, 2nd and 3rd degrees SIENES vs. ESPARCIA (1 SCRA 750) The Supreme Court upheld the validity of thte simultanous sales made by both the reservor and the reservees to two different buyers. The reservor may alienale the reservable property subject to as resolutory condition – his death- by virtue of which the property shall be transferred to relatives of the prepositus within the third degree (reservees). In effect, there is a double resolutory condition – (1) death of the reservoir and (2) the survival of the reservees upon the death of the reservor. CHUA vs. CFI (78 SCRA 414) During the intestate proceedings, the court issued an order imposing upon the heir the obligation of paying Standard Oil Co. the amount of P3,971.20. Hence, it is contended that the property in question was not acquired gratuitously but for a consideration, thereby departing from the requisite that the property, in order to reservable, must have been acquired by gratuitous title by the prepositus. Held: The transmission of property is gratuitous when the recipient does not give anything in return. In matters not when the whether the property transmitted be or be not subject to any prior charges, what is essential is that the transmission is made by the deceased himself gratuitously or by an act of mere liberality on the part of teh person making it, without imposing any obligation on the part of the recipient. The transmission of the property in question wa by means of hereditary succession and
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therefore gratuitous. The obligation to pay Standard Oil was not imposed by the ascendant but by order of the court. WHAT IS THE DELAYED INTESTACY THEORY? -When the resolutory condition of the reserva is fulfilled, the properties are distributed to the reservees as if they are inheriting from the prepositus at the time of fulfillment of the condition. Since there is no will, then the reserves inherit by virtue of intestate succession, the descendant being th propositus, thus the name Delayed Intestacy. WHAT IS DISINHERITANCE? The manner by which a compulsory heir is deprived of his legitimate, for causes expressly stated by law. WHAT ARE THE REQUISITES DISINHERITANCE?
FOR
A
VALID
1. It should be embodied in a VALID WILL 2. It must be made EXPRESSLY 3. It should be for a LEGAL CAUSE 4. It should be for a TRUE CAUSE 5. It should be for an EXISTING CAUSE 6. It should be TOTAL OR COMPLETE 7. It should be STATED IN THE WILL 8. The heir should be IDENTIFIED 9. The will must not have been REVOKED Grounds : Arts. 919 (child or descendant), 920 (parent or ascendant), 921 (spouse) MANINANG vs. CA (G.R. NO. L-57848 JUNE 19, 1982) Preterition and disinheritance are two diverse concepts Preterition “consists in the omission in the testator‟s will of the forced heirs or anyone of them, either because they are not mentioned therein, or though mentioned, they are neither instituted as heirs nor are expressly disinherited. Disinheritance in tuen “is a testamentary disposition depriving any compulsory
heirs of his shares in the legitimate for a cause authorized by law. Disinheritance is always “voluntary”, preterition upon the other hand , is presumed to be “involuntary” The effects of the preterition and disinheritance are also totally different: ..... Preterition under Article 854 of the New Civil Code shall annul the institution of heir. This annulment is in toto, unless in the wait there are, in addition, testamentary dispositions in the form of devises or legacies. In ineffective disinheritance under Article 918 of the same Code, such disinheritance shall also “annul the institution of heirs”, but only “insofar as it may prejudice the person disinherited” which last phrase was ommitted in the case of preterition. Better stated yet, disinheritance the nullity is limited to that portion of the estate of which the disinherited heirs have been illegaly deprived. PECSON vs. MEDIAVILLO (G.R. No. 7890, September 29, 1914) Paragraph 3 of the will disinherited Rosario in the language: I declare that one of my daugthers, named Teresa, now deceased, left a legitimate daughter named Rosario Mediavillo. I also declare that i disinherit my granddaughter, the said Rosario Mediavillo, because she was grossly disrespectful to me and because on one occasion, when it was I do not remember, she raised her hand against me. Therefore, it is my will that the said Rosario Mediavillo shall have no share in my property. Rosario alleges that she was disinherited without a cause. Disinheritance shall only take place for one of the causes expressly fixed by law. Article 849 of the Civil Code provides that the disinheritance can only be effected by the testament, in which shall be mentioned the legal grounds or causes for such disinheritance. The rights of the courts to inquire into the causes and whether there was sufficient cause for the disinheritance or not is supported by express provisions fo the Civil Code. It appears from
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the record that when Rosario Mediavillo was about 14 years of age, she had received some attentions from a young man – that she had received a letter from him --- and that her grandfather, Florencio Pecson, took occasion to talk to her about the relations between her and the said young man; that it was upon that occasion when, it is alleged, the disobedience and disrespect were shown to her grandfather. The record shows that very soon after said event she lost the use of her mental powers and that she has never regained them, except for very brief periods, up to the present time. Taking into considerations her tender years, and the fact that she very soon thereafter lost the use of her mental faculties, the conclusion was reached that she was probably not responsible for the disrespect and disobedience shown to her grandfather in the year 1894 or 1895. WHAT IS THE EFFECT OF RECONCILIATION IN DISINHERITANCE? -A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit and renders ineffectual any disinheritance that may have been made. WHAT IS THE DISINHERITANCE?
EFFECT
OF
INVALID
-The institution of heirs shall be annulled insofar as it may prejudice the person disinherited; but the devises and legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitimate. WHAT IS THE RULE WITH RESPECT TO LEGACIES AND DEVISES? -Gen. Rule: Must be within the commerce of men - Effect of ownership as to the validity of the legacy or devise: a. If the testator, heir, or legatee owns only a part of, or an interest in the thing bequeathed – the legacy or devise shall be understood limited to such part or interest, unless the
testator expressly declares that he gives the thing in its entirety. b. If the testator does not own the thing devised or bequeathed but the testator erroneously believed that the thing pertained to him – the legacy or devised is void, but subsequent acquisition of the thing by the testator makes the legacy or devise effective. c. If the testator does not own the thing devised or bequeathed and the testator knew that he did not own the thing – legacy or devised is valid. d. The thing devised or bequeathed belonged to the legatee or devisee at the time of the execution of the will – legacy or devise is void. e. The thing devised or bequeathed was acquired by the legatee or devisee after the execution of the will – if the legatee or devisee acquired it gratuitously, he can claim nothing by virtue of the legacy or devise; but it has been acquired by onerous title he can demand reimbursement from heir or the estate. WHAT ARE THE INSTANCES WHEN A LEGACY OR DEVISE IS CONSIDERED REVOKED BY OPERATION OF LAW? a. The legacy of credit of remission shall lapse if the testator, after having made it, should bring an action against the debtor for the payment of his debt; b. If the testator transforms the thing bequeathed ins such a manner that it doesnot retain either the form or the denomination it had; c. If the testator by any title or for any cause voluntarily alienates the thing bequeathed or any part thereof, it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part thus alienated. If after the alienation the thing should again belong to the testator, even if it be by reason of nullity of the contract,
52
the legacy or devise shall not thereafter be valid, unless the reacquisition shall have been effected by virtue of the exercise of the right of repurchase; d. If the thing bequeathed is totally lost during the lifetime of the testator, or after his death without the heir‟s fault. IF THE ESTATE SHOULD NOT BE SUFFICIENT TO COVER ALL THE LEGACIES OR DEVISES, HOW SHOULD LEGACIES AND DEVISES IS SATISFIED? -Satisfaction should be made in the following order: (1) Remunerators legacies or devises; (2) Legacies or devises declared by the testator to be preferential; (3) Legacies for support; (4) Legacies for education; (5) Legacies or devises of a specific, determinate thing which forms a part of the estate; (6) All others pro rata. *The foregoing enumeration shall be followed if there are no donations intervolves made by the testator and there are no compulsory heirs. Otherwise the reduction shall be made as follows: (1) Donations shall be respected as long as the legitimate can be covered, reducing or annulling, if necessary, the devises or legacies made in the will – between 2 donations, the one with the more recent date shall be reduced first. (2) The reduction of the devises shall be pro rata, without any distinction whatever. If the testator has directed that a certain devise or legacy be paid in preference to others, it shall not suffer any reductions until the latter have been applied in full to the payment of the legitimate. (3) If the devise or the legacy consists of a usufruct or life annuity, whose value may be considered greater
than that of the disposable portion, the compulsory heirs may choose between complying with the testamentary provision and delivering to the devisee or legatee the part of the inheritance of which the testator could freely dispose. WHEN SHALL LEGAL OR INTESTATE SUCCESSION TAKE PLACE? Legal or intestate succession takes place: (1) If a person dies without a will, or with a void will, or one which has subsequently lost its validity; (2) When the will does not institute an heir to, or dispose of all the property belonging to the testator. In such case, legal succession shall take place only with respect to the property of which the testator has not disposed; (3) If the suspensive condition attached to the institution of heir does not happen or is not fulfilled, or if the heir dies before the testator, or repudiates the inheritance, there being no substitution, and no right of accretion takes place; (4) When the heir instituted is incapable of succeeding, except in cases provided under the Civil Code.
WHO ARE THE LEGAL HEIRS? 1. Legitimate children and descendants; 2. In the absence of legitimate children ad descendants, legitimate parents and ascendants; 3. Surviving spouse; 4. Illegitimate children; 5. Brothers and sisters; 6. Collateral relatives up to the 5 th degree of consanguinity; 7. State.
IF THERE IS ONLY PARTIAL INTESTACY, HOW SHOULD THE ESTATE IS DISTRIBUTED?
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Eg. Legacy of 20,000 estates is 100,000
Charge legacies, etc. to the instate shares of those given by law on intestacy more than their respective legitimates, without however impairing said legitimates. The remainder after legacy and legitimate of illegitimate is given, is again given to the illegitimate because of the intent of the law on intestacy is to give as much as possible equal sharing with legit ascendants.
WHAT IS THE IRON BAR RULE? In legal succession, there is absolute separation between legitimate family and illegitimate family. ARTICLE 992. An illegitimate child has no right to inherit ab intestato from the legitmate children and relatives of his father or mother; nor shall such children or relatives inherit in the same manner from the illegitimate child. Illustration A
B
D C
E
F
G H I J Under Art. 992, I and J cannot represent F Under Art. 990, G and H can represent E Hence, an illegitimate can be represented by his children. Legitimate or illegitimate, but a legitimate child cannot be represented by his illegitimate children E cannot inherit from B and A D cannot inherit from C and vice-versa ( reciprocal prohibition ) IN THE MATTER OF THE INTESTATE ESTATE OF CRISTINA AGUINALDO-SUNTAY; EMILIO A.M.
SUNTAY III vs. ISABEL COJUANGCO-SUNTAY (G.R. No. 183053, JUNE 16, 2010) On June 4, 1990, the decedent, Cristina Aguinaldo-suntay (Cristina), Married to Dr. Federico Suntay (Federico), died intestate. In 1979, their only son, Emilio Aguinaldo Suntay (Emilio I), predeceased both Cristina and Federico. At the time of her death, Cristina was survived by her husband, Federico, and several grandchildren, including herein petitioner Emilio A.M. Suntay III (Emilio III) and respondent Isabel Cojuangco-Suntay. During his lifetime, Emillio I was married to Isabel Cojuangco, and they begot three children, namely: herein respondent, Isabel; Margarita; and Emilio II, all surnamed Cojuangco-Suntay. Emilio I's marriage to Isabel Cojuangco was subsequently annulled. Thereafter, Emilio I had two children out of wedlock, Emilio III and Nenita Suntay Tanedo (Nenita), by two different women, Concepcion Mendoza and Isabel Santos, respectively. Despite the illegitimate status of Emilio III, he was reared ever since he was a mere baby, nine months old, by the spouses Federico and Cristina and was an acknowledged natural child of Emilio I. Nenita is an acknowledged natural child of Emilio I and was likewise brought up by the spouses Federico and Cristina. Upon the death of Cristina, Federico adopted Emilio III. During the intestate proceeding over Cristina's estate, Federico sought appointment as administrator thereof. Later on, he nominated Emilio III to act as administrator. The Court of Appeals (CA) zeroed in on Emilio III's status as an illegitimate child of Emilio I and, thus, barred from representing his deceased father in the estate of the latter's legitimate mother, the decedent. On the whole, the CA pronounced that Emilio III, who was merely nominated by Federico, and which nomination hinged upon the latter's appointment as administrator of the decedent estate, cannot be appointed as the administrator of the decedent's estate for the following reasons: The appointment of Emilio III subject to a suspensive condition, i.e., Federico's
54
appointment as administrator of the estate, he being the surviving spouse of Cristina, the decedent. The death of Federico before his appointment as administrator of Cristina's estate rendered his nomination of Emilio III inoperative. As between the legitimate offspring (respondent) and illegitimate offspring (Emilio III) of decedent's son, Emilio I, respondent is preferred, being the “next of kin” referred to by Sec. 8, Rule 78 of the Rules of Court, and entitled to share in the distribution of Cristina's estate as an heir; Jurisprudence has consistently held that Art. 992 of the Civil Code bars the illegitimate child from inheriting ab intestato from the legitimate children and relatives of his father and mother. Thus, Emilio III, who is barred from inheriting from his grandmother, cannot be preferred over respondent in the administration of the estate of their grandmother, the decedent; and Contrary to the RTC's finding, respondent is as much competent as Emilio III to administer and manage the subject estate for she possesses none of the disqualifications specified in Sec. 1, Rule 78 of the Rules of Court. The pivotal issue in this case turns on who, as between Emilio III and respondent, is better qualified to act as administrator of the decedent's estate. HELD: We cannot subscribe to eh appellate court's ruling excluding Emilio III in the administration of the decedent's undivided estate. Mistakenly, the CA glosses over several undisputed facts and circumstances: The underlying philosophy of our law on intestate succession is to give preference to the wishes and presumed will of the decedent, absent a valid and effective will; The basis for Art. 992 of the Civil Code, referred to as the iron curtain bar rule is quite the opposite scenario in the facts obtaining herein for the actual relationship between Federico and Cristina on one hand, and Emilio III, on the other, was akin to the normal relationship of legitimate relatives.
Emilio III was reared from infancy by decedent, Cristina, and her husband Federico, who both acknowledged him as their grandchild; Federico claimed half of the properties included in the estate of the decedent, Cristina, as forming part of their conjugal partnership and gains during the subsistence of their marriage; Cristina's properties forming part of her estate are still commingled with that of her husband Federico, because her share in the conjugal partnership, albeit terminated upon her death, remains undetermined and unliquidated; and Emilio III is a legally adopted child of Federico, entitled to share in the distribution of the latter's estate as a direct heir, on degree from Federico, not simply, representing his deceased illegitimate father, Emilio I. From the foregoing, it is patently clear that the CA erred in excluding Emilio III from the administration of the decedent's estate. As Federico's adopted son, Emilio III's interest in the estate of Cristina is as much apparent to this Court as the interest therein of respondent, considering that the CA even declared that “under the law, [ Federico], being the surviving spouse, would have right of succession over a portion of the exclusive property of the decedent, aside from his share in the conjugal partnership.” Thus, we are puzzled why the CA restored to a strained legal reasoning – Emilio III's nomination was subject to a suspensive condition and rendered inoperative by reason of Federico's death – wholly inapplicable to the case at bar. Note: Legitimate Children exclude parents, brothers and sisters, nephews and nieces Children (legitimate or illegitimate) concur with surviving spouse Illegitimate children exclude illegitimate parents, brothers and sisters, nephews and nieces (Art. 988 and 1003) Parents exclude brothers and sisters, nephews and nieces Parents concur with surviving spouse Surviving spouse concurs with, brothers and sisters, nephews and nieces
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Surviving spouse must be legitimate (legally married) must not be guilty party in case of legal separation because she becomes disqualified to inherit (Art. 1002) Decree of legal separation is required for the spouse to be disqualified. But if he/she gave cause for legal separation only, this is ground for disinheritance Reconciliation erases the ground for disinheritance. Also puts aside the effects of legal separation In testamentary succession, if the spouse is the only survivor, the share varies if the marriage was celebrated in articulo mortis. In legal succession, the spouse gets the entire estate whether or not the marriage was celebrated in articulo mortis. If the spouse survives with legitimate parents and adopted child, treat the adopted child as illegitimate. Reason: The adopted child will not exclude legitimate parents (Del Rosario vs. Conanan, March 30, 1977) Collateral Relatives neared excludes the farther Brothers and sisters. Those in full blood inherit in equal shared, those in the half blood inherit half of that in the full blood. In the collateral line, right of representation is only up to nephews and nieces. In the direct line, no limit between aunts/uncles and nephews/nieces, who are preferred? Nephews and nieces because they come first in the order of succession and are in the descending line collaterals are only up to the 5 th civil degree. In the direct line, no limit. Summary: Nearer, excludes the farther subject to right of representation (eg. Children vs. grandchildren) if same degree, direct line is preferred over the collateral line (eg. Grandchildren vs. brothers/sisters) If both in the direct line, descending favored over ascending, except illegitimate descendants (eg. Parents vs. children) if both in collateral, descending favored over
ascending (eg. nephews/nieces)
Aunts/uncles
vs.
State succeeds in default of all heirs in the direct line and collaterals up to the 5 th civil degree Caduciary rights: refer to the right of the estate of the estate to claim thru escheat proceedings the properties of descendants who are not survived by any heirs. Escheat proceedings: Process by which state acquires. Rule 91 of the Rules of Court WHAT IS ACCRETION? is a right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share or who died before the testator, is added or incorporated to that of his co-heirs, codevisees, or co- legatees. Based on presumed will of testator that he prefers to give certain properties to certain individuals, rather than his own heirs. WHAT ARE THE REQUISITES FOR ACCRETION? Unity of object (one inheritance) plurality of subjects (2 or more to inherit ordinarily) vacant portion acceptance (of portion accruing by the person entitled) Example: A house and lot to X and Y Before there can be accretion, observe the following rule (ISRAI): Institution Substitution Representation Accretion Intestacy Accretion occurs both in Testamentary and Legal Succession WHEN IS THERE UNITY OF OBJECT? 2 or more persons called to the same inheritance or same portion, pro-indiviso. Meaning, undivided
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Words ½ for each, in equal shares, though designate aliquot parts, do no exclude right of accretion as long as the specific part is not identified as to make each heir the exclusive owner of a determinate property ( Art. 1017). Same if ¼ to A ¾ B. Eg. ½ to A and same to B in my lot in Ma-a. But if the north to B and south to A, no accretion. Money or fungible goods. Share must not be earmarked. Eg. My cash in my vault, to A, B, and C. But if my cash in Metro Bank to A, in UCPD to B, no accretion WHERE IS THERE VACANCY? Testamentary/ Succession Vacant caused by: predecease incapacity repudiation (share always accrues to the others Art. 1018) if suspensive conditions is not fulfilled failure to identify one particular heir (ineffectiveness of institution) among compulsory heirs, accretion takes place only on free portion. If part repudiated is legitime, co-heirs inherit in own right, not by accretion (Art. 1021)
Spous Parents alone – ALL
Illegiti Survivi
Surviving Spouse along – ALL
Legiti Survivi
Illegitimate Child alone – ALL
Illegiti Survivi Legiti
1 Legitimate Child – ½ Surviving Spouse – ½
Illegiti Survivi
Illegitimate Children – ½ Legitimate Parents – ½
Survivi Brothe
Note: In legal succession, if only 2 classes of concurring heirs survive, divide the estate by 2. Each class shall receive ½.
WHAT IS THE RIGHT OF REPRESENTATION? Representation is a right created by fiction of law, by virtue of which the representative is rasied 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. The right of representation takes place in the direct descending line, but never in the Legal Succession ascending. In the collateral line, it take place Vacancy caused by: only in favor of the children of brothers or sisters Repudiation (share always accrues to the (nephews and nieces), whether they be of the other Art. 1018) full or half blood. Incapacity (subject to representation) When children of one or more brothers and Predecease no accretion because there is sisters of the deceased survive, they shall inherit really no vacant portion and survivors inherit in from the latter by representation (per stirpes), if their own right or by representation. But effect they survive with their uncles or aunts. But if is the same. they alone survive, they shall inherit in equal Eg. T died without will but one of his 3 children portions (per capita). renounced his inheritance. Share shall accrue In case of grandchildren of the decedent, they to the 2 children. always inherit by right of representation (per stirpes) even if all the children of the decedent HOW MUCH SHALL ACCRUE TO THE CO-HEIRS are deceased. IN ACCRETION? Heirs who repudiate their share may not be In the same proportion that the heirs inherit represented. (Art. 1019) Can an adopted child represent? No. WHAT LAW GOVERNS CAPACITY TO SUCCEED? WHAT ARE THE INTESTATE SHARES OF THE LEGAL Capacity to succeed is governed by the law HEIRS? of the nation of the decedent. (Art. 1039) Legitimate Child alone – ALL 2 or So more Legitimate Children Surviving in addition to Art. 16, the following are
57
governed by the national law of decedent. 1. order of succession 2. amount of successional rights 3. instrinsic validity if testamentary provision 4. capacity to succeed WHO ARE CAPACITATED TO SUCCEED? Judicial persons inherit only by will the state inherits by will or by intestacy insane persons, though incapacitated, to enter into contracts or make wills, are capacitated to inherit. In order to be capacitated to inherit, the heir, devisee, or legatee must be living at the moment the succession opens, except in case of representation, when it is proper. “living” includes those conceived at time of death of decedent but follow Art. 41, Civil Code – considered born if alive at time of complete delivery. If intra-uterine life is less than 7 months, must not die within 24 hours from complete delivery. Right or representation is not an exception because even the representative must already be alive or at least conceived at time of death of testator. WHAT ARE THE KINDS OF INCAPACITY? Absolute – cannot inherit from anybody under any circumstance 2 classes: Art. 1026, last paragraph. “All other corporations or entitles may succeed under a will, unless there is a provision to the contrary in their charter of the laws of their creation, and always subject to the same.” Art. 1027 (6) individuals, associations and corporations not permitted by law to inherit Those who lack juridical personality (abortive infants) Relative – cannot inherit only from certain persons or certain properties but can inherit from other persons or certain properties 3 classes of relative incapacity: by reason of possible undue influence (art. 1027 [1 – 5]) by reason of public policy and morality (art. 1028) by reason of unworthiness (art. 1032)
INCAPACITY BY REASON OF POSSIBLE UNDUE INFLUENCE ARTICLE 1027. The following are incapable of succeeding: The priest who heard, the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; Reasons: to safeguard the rights of the heirs who may be defrauded by the sinister and undue influence which may be exercised by some priests or ministers over a dying man Will must be made DURING last illness for it is there that undue influence could have been exercised. Not BEFORE because undue influence does not yet exist NOR AFTER because no longer subject to undue influence. Will must be made AFTER confession, not BEFORE because before confession, no undue influence yet. Hence, during last illness and after confession. Confession need not be the last, Eg. Very sick man. Priests may say during confession, you will soon die from your illness. If you will not give not give to me, you will go to hell.” Last illness is one of which the testator died, OR the one immediately preceding it (like died of accident) Note: If the testator did not die from last illness, but from other causes, the death must immediately follow confession during last illness such that testator had no opportunity to revoke the will. Thus if testator became ill in 1990 and confessed then made a will in 1990 making priest a heir, then gets well in 1991 and did not become ill since then and subsequently died in an accident in 2003, there is sufficient opportunity to revoke. Nature of last illness, great possibility of death, regardless of whether chronic or acute, long or short. Disqualification does not extend to: 1. Legitime (only free portion) 2. Intestacy (no undue influence) 3. Dispositions which do not extend testamentary benefit (eg. Appointment as executor) Priest must hear confession, one who extends spiritual aid is not disqualified Minister who extends spiritual aid disqualified.
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legitime and qualified to inherit by intestacy. The relatives of such priest or minister of the gospel within the 4 th degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong. A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof, nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid. Guardian of person or property As long as final account is not yet approved, cannot be made heir, legatee or devisee even if at time of death testator, account is already approved. Illustrate. If after approval of final accounts, guardian can already be voluntary heir, legatee or devisee. Final accounts – given to the court when guardianship is removed, or when he resigns, or when no need for guardianship to continue. If guardian is the spouse, ascendant, descendant, brother or sister, the provision is valid. Hence, if guardian is 1st cousin, nephews, nieces, etc. - VOID. Reason: Affection, not influence is the underlying reason. Unlike the priest, the relatives of the guardian are not disqualified. Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children. Related to Art. 823 If there are 3 other witnesses, the witness is qualified to inherit (Art, 823) Notary public not disqualified to inherit. (5). Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness. Will must be made during last illness and after care had commenced Tock care – continuing or regular, not isolated If physician or nurse etc. relative, still disqualified because the law is silent unlike case of guardian. BUT can still get their children
In Art. 1027, there is CONCLUSIVE PRESUMPTION that there was undue influence. Cannot prove otherwise. INCAPACITY BY REASON OF PUBLIC POLICY AND MORALITY. ARTICLE 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. Art. 739 Testator and recipient guilty of adultery or concubinage – guilt may be proved by preponderance of evidence. No need from criminal conviction. Between persons found guilty of the same criminal offense, in consideration thereof. Made to public officer of his wife, descendants, ascendants, by reason of his office. INCAPACITY BY REASON OF UNWORTHINESS (Art. 1032) ARTICLE 1023. The following are incapable of succeeding by reason of unworthiness: Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue. Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants. If attempted to kill testator's father after testator's death, not disqualified because capacity to succeed is measured at time of decedent's death (Art. 1034) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless. Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation. Full age – 21 years old knowledge of VIOLENT DEATH – caused by crime
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there is obligation to make accusation: Under Spanish Law page 561 Paras, certain persons are exempted from making accusations. In Phils, no one is obliged to make accusations. Any person convicted of adultery or concubinage with the spouse of the testator. Spouse guilty him/herself is not incapacitated but ground for disinheritance (given cause for legal separation) if decree of legal separation is granted, guilty spouse becomes disqualified to inherit. Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change or already made. Any person who by the same means prevents another from making will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; Any person who falsifies or forges a supposed will of the decedent. Art. 1032 applies both to testate and intestate succession Compulsory heir who is incapacitated loses all (legitime and free portion) But again, can be represented Condonation If the testator already knew the cause of unworthiness at the time of will-making, the mere fact of institution or giving legacy or devise is an IMPLIED CONDONATION. - knowledge at time of will making is not enough. Testator must give something in the will to the disqualified heir in order that there may be condonation. - the will made must be valid or not revoked in order that there may be implied condonation. If knowledge comes only after execution of will, condonation must be writing – EXPRESS REVOCATION. - express revocation is irrevocable unless there is vitiated consent. What if there is subsequent reconciliation? Under Art. 922; reconciliation renders disinheritance ineffective. How about the incapacity? Should there still be condonation in writing? NO. When cause for unworthiness is made the ground for disinheritance, Art. 922 applies. Reconciliation is enough. When there
is no disinheritance. Art. 1033 applies. In Testamentary Succession, the incapacitated covers the entire intestate share of the incapacitated heir. In Legal Succession, the right of representation covers the entire intestate share of the incapacitated her. Like in disinheritance, the excluded person shall not enjoy the usufruct and administration of the inherited property of his/her children. Prescriptive periods Prescriptive period for declaration of incapacity – 5 years from time the disqualified took possession (Art. 1040) Prescriptive period for recovery of inheritance – 5 years from time the disqualified took possession (Art. 1040) Who can bring action – those interested in the succession. (Art. 1040) WHAT IS ACCEPTANCE? Acceptance – the act by which a person called to succeed to the inheritance of a decedent, either by will or by law, manifests his assent to the receipt of the property, rights, and obligations which are transmitted to him thru death of said decedent. WHAT IS REPUDIATION? Repudiation – the act by which a person called to succeed to said inheritance, manifests his unwillingness to succeed to the same. Nature of acceptance and Repudiation 1. Rights may be waived provided only that such waiver is not contrary to law, public order, public policy, moral, good customs, or prejudicial to the rights of a 3rd person. (Art. 6) 2. No person can be forced to accept the generosity of another. Thus, acceptance is required. 3. Voluntary and free acts. Presence of vitiated consent will render them without effect. 4. Both are subsequent to death of decedent but their effects retroact to
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5. 6.
7.
8. 9.
the moment of death. (Art. 1042) Once made, are irrevocable. It is more usual to accept then to reject an advantage or benefit. Hence, acceptance may be express or tacit or presumed. (art. 1049). Repudiation being an act of disposition, requires greater capacity and more formalities than acceptance. There can be partial acceptance and partial repudiation (Arts. 954 and 955 – accept onerous and repudiate gratuitous or if both onerous and gratuitous, accept and reject both or either. Repudiation of hereditary rights partakes the nature of donation. Acceptance of inheritance does not make the heir personally liable for the debts and obligations of decedent. ( art. 774). Heir
A. Minors
, institutions and entities (Art. 1046)
D. Public Official Establishme nts
order made Art.1030
in
Lawful representati ves may accept in behalf of
E. Married Woman
F. Deaf mutes who can read and write
ves with court approval
Must be with approval governmen t
Must be with approval of governmen t
Herself even without husbands consent
Personality or by an agent
Acceptanc e
Repudiatio n
May be represente d by parents or guardians
Parents or guardians with judicial approval
Accept on her own
No one
Personally or through an agent
(Art. 1044) B. Those left to the poor
C. Corporatio ns, associations
Must be accepted by the persons designated by the testator or in their default follow the
Lawful representati
Creditors may also accept in behalf of heirs under Article 1052. If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir. The creditors must be prejudiced. If the heir concerned still has his own
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properties, the creditors must go after the property of the heir, they cannot accept in behalf of heir. HOW IS ACCEPTANCE MADE? (A) Express Acceptance- must be in a public or privates document. Cannot be verbal (Art.1049) (B) Tracit- results from acts by which the intention to accept is necessarily implied or which one would have no right to do except in the capacity of an heir. (Art. 1049) Example of Tracit Acceptance: ARTICLE 1050. accepted:
An inheritance is cleemed
inherit by accretion (or substitution) of the portion renounced. (C)Presumed- if heir, devisee or legatee does not accept pr repudiate within 30 days after the court has issued an order for the distribution of the estate (Art. 1057) BUT: Acts of mere conservation or provisional administration do not constitute acceptance ( Art. 1049, last paragraph: Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title r capacity of an heirs has not been assumed.) HOW IS REPUDIATION MADE?
1. If the heirs sells, donates, or assigns his right to a stranger, or to his co-heirs, or to any of them; 2. If the heir renounces the same, even though gratuitiously, for the benefit of one or more of his co-heirs not allhence, renunciation may be onerous or gratuitous. An act of disposition because one or more of the co-heirs acquire a benefit or advantage which would not have accrued to them in the case of true renunciation. 3. If he renounces it for a price in favor of all his co-heirs indiscriminately but if this renunciation should be gratuitious, and the co-heirs in whose favor is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. “co-heirs”meaning in intestacy, substitution or accretion -if gratuitous , renunciation must not be made in favor of the ones who will
1. Public or authentic instrument *public document-act acknowledge before notary public, or person authorized to administer oath *authentic document- genuine document not forged or falsified. May be private. 2. by petition presented to the court having jurisdiction over the testamentary or intestate proceedings. WHAT ARE THE EFFECTS OF REPUDIATION? 1. If both a testamentary heir and intestate heir to the same inheritance, repudiation as testamentary heir is deemed to include also repudiation as intestate heir. Reason: Having repudiated the express will, it is understood that he also repudiates the presumed will; 2. If repudiates as a intestate heir, may still accept as testamentary heir provided that at time of repudiation, he did not
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know if his institution as testamentary heir. Reason: may not want to refuse the express wishes of testator. Imperial vs. CA, [G.R. No. 112483. October 8,1999 Leoncio sold his land title to his natural son, petitioner but it was alleged that the sale was in fact a donation. 2 years after the donation, Leoncio filed a complaint for annulment of the said Deed of Absolute Sale on the ground that he was deceived into signing the said document. The dispute, however, was resolved through a compromise agreement. Pending execution of the above judgment, Leoncio died, leaving only two heirs- his natural son, and an adopted son, Victor Imperial. In 1962, Victor was substituted in place of Leoncio in the above mentioned case, and it was he who moved for execution of judgment. Fifteen years thereafter, Victor died single and without issue, survived only by his natural father, Ricardo. Four years after, Ricardo died, leaving as his only heirs his two children, Cesar and Teresa. Cesar and Teresa filed a complaint for “ Annulment of Documents, Reconveyance and Recovery of Possession” seeking the nullification of the Deed of Absolute Sale alleging that the conveyance of said property impaired the legitimate of Victor Imperial, their natural brother and predecessor-in-interest. As argues by petitioner, when Leoncio died, it was only Victor who has entitled to question the donation. However, instead of filing an action to contest the donation, Victor asked to be substituted as plaintiff in Civil Case No. 1177 and even moved for execution of the compromise judgment therein. Thus, Victor was deemed to have renounced his legitime. HELD: No renunciation of legitime may be presumed from the foregoing acts. It must be remembered that at the time of the
substitution, the judgment approving the compromise agreement has already been rendered. Victor merely participated in the execution of the comprise judgment. He was not a party to the compromise agreement. More importantly, our law on succession does not countenance tacit repudiation of inheritance. Rather, it requires an express act on the part of the heir. Thus, when Victor substituted Leoncio in Civil Case No. 1177 upin the latter‟s death; his act of moving for execution of the compromise judgment cannot be considered an act of moving for execution of the compromise judgment cannot be considered an act of renunciation of his legitime. He was, therefore, not precluded or stopped from subsequently seeking the reduction of the donation, under Article 772. Nor are Victor‟s heirs, upon his death, precluded from doing so, as their right to do so is expressly recognized under Article 772, and also in Article 1053. If the heir should die without having accepted or repudiated the inheritance, his right shall be transmitted to his heirs. The ten year prescriptive period applies to the obligation to reduce inofficious donations, compulsory heirs under Article 771 of the Civil Code, to the extent that they impair the legitimate of compulsory heirs. The cause of action to enforce legitimate accrues upon the death of the donor-decedent. Clearly so, since it is only then that the net estate may be ascertained and on which basis, the legitimes may be determined. WHAT IS COLLATION?
Question of collation arises only if there are donations inter vivos made by the dececent abd there are compulsory heirs surviving. 3 concepts of Collation: 1. Mathematics Process- the imaginary addition or fictitious reunion of
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property donated by the testator inter vivos with the properties left at the time of his death. 2. Imputation- donation inter vivos made to compulsory heirs are considered as advances to their legitimes. 3. Actual Reduction or Abatementactual reduction or bringing back of that property donated by the testator during his lifetime to the hereditary estate if the donations are found to be inofficious. ARE DONATION TO STRANGERS SUBJECT TO COLLATION? CASE: Vda. De Tupas, vs RTC of Negros Occidental (October 3, 1986) Tupas Foundation, Inc. being a stranger and not a compulsory heir, the donation inter vivos made in its favor was not subject to collation. HELD: A person‟s prerogative to make decisions is subject to certain limitations, one of which is that he cannot give by donations more than he can give by will. If he does, so much of what is donated as exceeds what he can give by will is deemed inofficious and the donation is reducible to the extent of such excess, though without prejudice to its taking effect in the donor‟s lifetime or the donee‟s appropriating the fruits of the thing donated. Such a donation is, moreover collationable, that is, its value is in imputable into the hereditary estate of the donor at the time of his death for the purpose of determining the legitime of the forced compulsory heirs and the freely disposable portion of the estate. This is true as well of donations to strangers as of gifts to compulsory heirs, although the language of Article 1061 of the Civil Code
would seem to limit collation to the latter class of donations. Collationable gifts should include gifts made not only in favor of the forced heirs, but even those made on favor of strangers, so that in computing the legitimes, the value of the property donated should be considered part of the donor‟s estate. The fact that the donated property no longer actually formed part of the estate of the donor at the time of his death cannot be asserted to prevent its being brought to collation. Collation contemplates and particularly applies to gifts inter vivos. The further fact that the lots donated were admittedly capital or separate property of the donor is of no moment, because a claim of inofficiousness does not assert that the donor gave what was not his, but that he gave more than what was within his power to give. In order to find out whether a donation is inofficious or not, the rules are: 1. Determination of the value of the property which remains at the time of the testator‟s death; 2. Determination of the obligations, debts, and charges which have to be paid out or deducted from the value of the property thus left; 3. The determination of the difference between the assets and the liabilities, giving rise to the hereditary estate; 4. The addition to the net values thus found, of the value at the time they were made, of donations subject to collation; and 5. The determination of the amount of the legitimes by getting from the total thus found the portion that the law provides as the legitime of each respective compulsory heir. Deducting the legitimes from the net value of the hereditary estate leaves freely disposable portion by which the
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donation in question here must be measured. If the value of the donation at the time it was made does not exceed that difference, then it must be allowd to stand. But is it does, the donation is inofficious a the excess and must be reduced by the amount of said excess. In this case, if any excess be shown, it shall be returned or reverted to the sole compulsory heir if the deceased Epifano R. Tupas.
IS AN IRREVOCABLE DONATION SUBJECT TO COLLATION? CASE: Buhay De Roma vs. CA (July 23,1987) There is nothing in the above provisions expressly prohibiting the collation of the donated properties. As the said court correctly observed, the phrase “sa pamamagitan ng pagbibigay na din a mababawing muli” merely described the donation as “irrevocable‟ and should not be construed as an express prohibition against collation. The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061. The intention to exempt from collation should be expressed plainly and unequivocally as an exception to the general rule announced in Article 1062. The suggestion that there was an implied prohibition because the properties donated were imputable to the free portion of the decedent‟s estate merits little consideration. Imputation is not the question here, nor is it claimed that the disputed donations is officious. The sole issue is whether or not there was an express prohibition to collate, and there was none. WHAT IS PARTITION?
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Partition, in general, is the separation, division and assignment of a thing held in common among those whom it may belong. The thing itself may be divided, or its value.
CAN PARTITION BE MADE DURING THE LIFETIME OF THE DECEDENT? CASE: Zaragoza vs CA (341 SCRA 309, September 29,2000) It is basic in the law of succession that a partition inter vivos may be done for as long as legitimes are not prejudiced. Art. 1080 of the Civil Code is clear on this. The legitime of compulsory heirs is determined after collation as provided for in Article 1061. Unfortunately, collation cannot be done in this case where the originl petition for delivery of inheritance share only impleaded one of the other compulsory heirs. The petition must therefore be dismissed without prejudice to the institution of a new proceeding where all the indispensable parties are present for the rightful determination of their respective legitime and if the legitimes were prejudiced by the partitioning inter vivos. WHAT ARE THE REQUISITES EXTRAJUDICIAL PARTITION?
FOR
AN
Case: Heirs of Joaquin Teves vs. CA (316 SCRA 632) The extrajudicial settlements executed by the heirs of Joaquin Teves and Marcelina Cimafranca are legally valid and binding. The extrajudicial settlement of a decedent‟s estate is authorized by section 1 of Rule of Court. For a partition pursuant to section 1 of Rule 74 to be valid, the following conditions must concur: 1. The decedent left no will; 2. The decedent left
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no debts , or if there were debts left all had been paid; 3.the heirs are all of age, or if they are minors, the latter are represented by their judicial guardian or legal representatives; 4. The partition was made by means of a public instrument or affidavit duly filed with the Registrars of Deeds. Although Cresenciano, Ricardo‟s predecessor in-interest, was not a signatory to the extrajudicial settlements, the parttion of Lot769A among the heirs was made in accordance with their intestate shares under the law. The extrajudicial settlements covering Lot769-A were necer registered. However, in the case of Vda. De Reyes vs cA, 35 the Court, interpreting section 1 of Rule 74 of the rules of court, upheld the validity of an oral partition of the decedent‟s estate declared that the non registration of an extrajudicial settlement does not affect its intrinsic validity when there are no creditors or the rights of creditors are not affected. IS AN ORAL PARTITION VALID? Cases: Pada-Kilario vs CA (G.R. No.13429, January 19,2000) The extrajudicial partition of the estate of Jacinto Pada among his heirs made in 1951 is valid, albeit executed in an unregistered private document. No law requires partition among heirs to be in writing and be registered in order to be valid. The requirement in Sec.1, Rule 74 of the Revised rules of Court that a partition be put in a public document and registered, has for its purpose the protection of creditors and the heirs their selves against tardy claims. The object of registration is to serve as constructive notice to others. It follows then that the intrinsic validity of partition not executed with the prescribed formalities is not
undermined when no creditors are involved. Without creditors to take into consideration, it is competent for the heirs of an estate to enter into an agreement for distribution thereof in a manner and upon a plan different from those provided by the rules from which, in the first place, nothing can be inferred that a writing or other formality is essential for the partition to be valid. The partition of inherited property need not be embodied in a public document so as to be effective as regards to heirs that participated therein. The requirement of Article 1358 of the Civil Code that acts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property, must appear in a public instrument, is only for the convenience, non-compliance with which does not affect the validity or enforceability of the acts of the parties as among themselves. And neither does the Statute of Frauds under Article 1403 of the New Civil Code apply because partition among heirs is not legally deemed a conveyance of real property, considering that it involves not a transfer of property from one to the other but rather, confirmation or ratification of title or right of property that an heir is renouncing in favor of another heir who accepts and receives the inheritance. Crucillo vs. IAC (317 SCRA 351) It can be gleaned unerringly that the heirs of Balbino A. Crucillo agreed to orally partition subject estate among themselves, as evinced by their possession of the inherited premises, their construction of improvements thereon, and their having declared in their names for taxation purposes their respective shares. These are indications that the heirs of Balbino A. Crucillo agreed to divide subject estate among themselves, for why should they
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construct improvements thereon, pay the taxes therefor, and exercise other acts of ownership, if they did not firmly believe that the property was theirs. It is certainly foolhardy for petitioners to claim that no oral partition was made when their acts showed otherwise. Moreover, it I unbelievable that the possession of the heirs was by mere tolerance judging from the introduction of improvements thereon and the length of time that such improvements have been in existence. Then too, after exercising acts of ownership over their respective portions of the contested estate, petitioners are stopped from denying or contesting the existence of an oral partition. The oral agreement for the petitioner of the property owned in common is valid, binding and enforceable on the parties. WHEN CAN PARTITION BE DEMANDED? Case: Santos vs. Santos ( October 12,2000) Prescription, as a mode of terminating a relation of co-ownership, must have been preceded by repudiation (of the coownership). The act of repudiation in turn is subject to certain conditions: 1. A co-owner repudiates the co-ownership; 2. Such an act of repudiation is clearly made known to the other co-owners; 3. The evidence thereon is clear and conclusive; and 4. He has been in possession through open continuous, exclusive and notorious possession of the property for the period required by law. There was no showing that Eliseo Santos had complied with these requisites. The SC was not convinced that Eliseo had repudiated the coownership, and even if he did, there was no showing that the same had been clearly made known to Ladislao. Under Article 1119 of the New Civil Code, acts of possessory character
executed in virtue of license or tolerance of the owners shall not be available for the purpose of possession. Indeed, Filipino family ties being close and well-knit as they are, and considering that Virgilio Santos was the ward of Isidra Santos ever since when Virgilio Santos was still an infant, it was but natural that the Appellant did not interpose any objection to the continued stay of Virgilio Santos and his family on the property and even acquiesced thereto. Appellant must have assumed too, that his brother, the Appellee Eliseo Santos, allowed his son to occupy the property and use the same for the time being. Hence, such possession by Virgilio Santos and Philip Santos of the property did not constitute repudiation of the coownership by the Appellee Eliseo Santos and of his privies for that matter. Penultimately, the action for partition is not barred by laches. An action to demand partition is imprescriptive or cannot be barred by laches. Each co-owner may demand at any time the partition of the common property. WHAT IS TE EFECT OF INCLUSION OF A NONHEIR IN THE PARTITION? Cases: Aznar Brothers Real Property Company vs. CA (March 7, 2000) In the instant cases, private respondents have set up the defense of ownership and questioned the title of AZNAR to the subject lot, alleging that the Extrajudicial Partition with Deed of absolute Sale upon which petitioner bases its title is null and void for being simulated and fraudulently made. First, private respondents claim that not all the known heirs of Crisanta Maloloy-on participated in the extrajudicial partition, and
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the two persons who participated and were made parties there were not heirs of Crisanta. This claim even if true would not warrant rescission of the deed. Under Article 1104 of the Civil Code, “[a] partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was a bad faith or fraud on the art of the persons interested, but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to him.” In the present case, no evidence of bad faith or fraud is extant from the records. As to the two parties to the deed who were allegedly not heirs, Article 1105 is in point; it provides: “ A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person.” In other words, the participation of non-heirs does not render the partition void in its entirely but only to the extent corresponding to them. The extrajudicial Partition with Deed of Absolute Sale is a notarized document. As such, it has in its favor the presumption of regularity and it carries the evidentiary weight conferred upon it with respect to its due execution. It is admissible in evidence without further proof of authenticity and is entitled to full faith and credit upon its face. He who denies its due execution has the burden of proving that contrary to the recital in the Acknowledgement he never appeared before the notary public and acknowledge the deed to be his voluntary act. Whoever alleges forgery has the burden of proving the same. Forgery cannot be presumed but should be proved by clear and convincing evidence. Private respondents failed to discharge this burden of proof; hence, the presumption in favor of the questioned deed stands. WHAT IS THE EFFECT OF PARTITION PEBDING PROBATE?
EXTRAJUDICIAL
Union Bank of the Philippines vs. Santibanez (G.R No. 149926. February 23,2005) It must be stressed that the probate proceeding had already acquired jurisdiction over all the properties of the deceased, including the three (3) factors. To dispose of them in any way without probate court‟s approval is tantamount to divesting it with jurisdiction which the Court cannot allow. Every act intended to put an end to division among co-heirs and legatees or, or any other transactions. Thus, devisee is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transactions. Thus, in executing any point agreement which appears to be in the nature of an extra-judicial partition, as in the case at bar, court approval is imperative, and the heirs cannot just divest the court of its jurisdiction over the part of the estate. Moreover, it is within the jurisdiction of the probate court to determine the identity of the heirs of the decedent. In the instant case, there is no showing that the signatories in the joint agreement are the only heirs of the decedent. When it was executed, the probate of the will was still pending before the court and the latter had yet to determine who the heirs of the decedent were. Thus, for Edmund and respondent Florence S. Ariola to adjudicate unto themselves the three (3) tractors was a premature act, and prejudicial to the other possible heirs and creditors who may be a valid claim against the estate of the deceased. WHEN CAN A CO-HEIR EXERCISE THE RIGHT OF REDEMPTION IN CASE HEREDITARY RIGHTS ARE SOLD PRIOR TO PARTITION? Cases: Garcia vs. Calaliman, (April 17,1989)
Case:
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The respondents claim that the 30-day period prescribed in Article 1088 of the New Civil Code for petitioners to exercise the right to legal redemption had already elapsed at the time and that the requirement of Article 1088 of the New civil Code that notice must be in writing is deemed satisfied because when notice would be superficious the purpose of the law having been fully served when petitioner Francisco Garcia went to the Office of the Registrars of Deeds and saw for himself, read and understood the contents of the deeds of sale. HELD: the issue has been squarely settled in the case of Castillo v. Samonte where the SC observed: “ Both the letter and spirit of the New Civil Code argue against any attempt to widen the scope of the notice specified in Article 1088 by including therein any other kind of notice, such as verbal or by registration. If the intention of the law had been to include verbal notice or any other means of information as sufficient to give the effect of this notice, then there would have been no necessity or reasons to specify in Article 1088 of the New Civil Code that the said notice be made in writing for, under the old law, a verbal notice or information was sufficient.” In the interpretation of a related provision (Article 1623 of the New Civil Code) written notice is indispensable, actual knowledge of the sale acquired in some other manners by the redemptioner, notwithstanding. He or she is still entitled to written notice, as exacted by the code, to remove all uncertainty as to the sale, its terms and validity, and to quiet any doubt that the alienation is not definitive. The la not having provided for any alternative, the method of notifications remains exclusive though the Codes do not prescribe any particular form or written notice nor any distinctive method notification of redemption.
Baylon vs. Amador (G.R. No. 160701. February 9,2004) The requirement of a written notice is mandatory. This Court has long established the rule that the notwithstanding actual knowledge of a co-owner, the latter is still entitled to a written notice from the selling coowner in order to remove all uncertainties about the sale, its terms and conditions as well as its efficacy and status. Private respondent was never given such written notice. He thus still has the right to redeem said one-third portion of the subject property. On account of the lack of written notice of the sale by the other co-heirs, the 30day period never commended. Exception: Actual knowledge was considered an equivalent to a written notice of sale because the right of legal redemption was involved more than thirteen years after the sales were concluded. Primary Structures Corp. vs. Sps. Valencia (G.R. No. 150060. August 19,2003) The thirty day period of redemption had yet to commence when private respondent Rosales sought to exercise the right of redemption on 31 March 1987, a day after she discovered the sales from the Office of the City Treasurer of Butuan City, or when the case was initiated, on 16 October 1987, before the trial court. The written notice of sale is mandatory. This Court has long established the rule that notwithstanding actual knowledge of a coowner, the latter is still entitled to a written notice from the selling co-owner in order to remove all uncertainties about the sale, its terms and conditions, as well as its efficacy and status. Even in Alonzo vs. Intermediate
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