Succession Tsn 2014

WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA JUNE 23, 2014

How do you define 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)

Have you encountered Succession in your other subjects? Constitutional Law – the only mention of Succession in the Constitution Section 7, Article XII of the Constitution. – Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, co rporations, or associations qualified to acquire or hold lands of the public domain.

What kind of Succession is being referred to in the Constitution? By hereditary succession.

properties? These properties without a successor would become idle, becomes stagnant. So what property to be beneficial to the society or to the community in general there has to be transmission of these properties. Through succession, the deceased person transfers his properties. 3) An Attribute of Ownership – it is provided by Article 428 of the Civil Code Art. 428. - The owner has the right to enjoy and dispose of a thing, without other limitations than those established by law.

As an owner of the property, you have the right to use the property, to enjoy the property, to possess the property, to destroy the property and to dispose the property. Transferring your property not only during your lifetime but after your death is also an attribute of ownership because if you can only dispose of your property during your lifetime but not upon you death impairs your right of ownership. Ownership in the full sense you have to have the right to dispose of the property not only during their lifetime but even after the death. There are several KINDS OF SUCCESSION

RAMIREZ v. RAMIREZ So in the Constitution it means LEGAL or INTESTATE SUCCESSION because if we allow testamentary succession or by will it would be very easy to circumvent the prohibition against foreigners owning lands in the Philippines. You can just execute a last will and testament and then devise the land to a foreigner. How about legitimes? Would it be covered by the prohibition? Succession to the legitime is also provided for by law. It is not because of the will of the testator even against the will of the testator even if he does not want it, he has to provide for his compulsory heirs who are entitled to get legitimes but definitely voluntary succession is not contemplated as covered under the term hereditary succession. Only succession that is provided for by law – intestate, intestate, forced succession (legitime).

What are the BASIS OF SUCCESSION? 1)

Natural Law – even if there is no inherent right to the properties of your predecessors, succession is merely a privilege but it is by reason of natural law that we have law on succession. Why? Because it is in the nature of man to provide for those who he will leave behind.

2)

Socio-Economic Postulate – Here, succession is intended to prevent the property from becoming idle.

1)

Succession inter vivos – from the word “inter vivos” means transfer during the lifetime. The transfer is intended to take effect during the lifetime of the decedent.

2)

Succession mortis causa – causa – “mortis causa” means upon the death. The ownership is transferred upon the death of the decedent.

Donation inter vivos – the transfer here of ownership happens during the lifetime of the donor. So it is also donation proper. The one you discussed in property. Donation mortis causa – causa – is similar to succession mortis causa . Here the transfer of ownership happens upon the death of the donor.

Is there any difference between succession (inter vivos/mortis causa) and donation (inter vivos/mortis causa)? When you say succession mortis causa and donation mortis causa, they mean the same thing. When you say succession inter vivos and donation inter vivos, they also mean the same thing. Succession inter vivos/Donation inter vivos – referring here of a transfer by gratuitous title during the lifetime of the transferor/ donor/ giver

For example a person dies, he has several properties, what will happen to these properties upon his death if there is no succession? So these properties will remain under his ownership. Who will now take care of his A.Y. 2014 JUSTIN RYAN – RANIZZA – RENIE JAY – SIGRID KIM| 1

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WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA presents transfer and convey, by way of DONATION, unto the DONEE the property above, described, to become effective upon the death of the DONOR; but in the event that the DONEE should die before the DONOR, the present donation shall be deemed rescinded and of no further force and effect.

WHAT LAW SHALL GOVERN?

1.





2.

Inter vivos – governed by the law on donation, to successfully transfer inter vivos a property which you intend to give gratuitously – you have to comply with the formalities of donation.

What are these formalities? It depends.

xxx

If it is a personal property which values less than 5000, there can be simultaneous delivery and there has to be acceptance. More than 5000 (personal property), it has to be made at least in writing or in a private document so as acceptance. If it is an immovable property or real property, regardless of the value the donation and acceptance must be in a public document.

Disposition mortis causa.

Mortis causa – causa – we have Art. 728 of the NCC

Article 728. Donations which are to take effect upon the death of the donor partake of the nature of testamentary provisions, and shall be governed by the rules established in the Title on Succession. (620)

So meaning if you are transferring property by gratuitous title and it is intended to take effect after the death of the giver, transferor or donor, you have to comply with the formalities of succession. It is to be governed by the law on succession. To effectively transfer ownership of the property you are transferring gratuitously mortis causa, you have to observe the formalities of will. Otherwise, even if you embodied the transfer in a public document and accepted in a public document but the transfer would take effect only after the death of the donor, it is not a valid transfer. It is as if there is no donation, it would just be disregarded because the appropriate form you have to observe is a form of a will. Without that the transfer would not be effective. Therefore, it is very important that you should know whether the transfer is inter vivos or mortis causa because you have to embody the transfer in a proper document. It is important also so that we would be able to know what form we have to observe whether you have to comply with the form of a donation or of a will. GANUELAS v. CAWED

The pertinent provision of the deed of donation reads,

xxx

xxx.

The distinguishing characteristics causa are the following:

of

a

donation mortis

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 the 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 the transferee. In the donation subject of the present case, there is nothing therein which indicates that any right, title or interest in the donated properties was to be transferred to Ursulina prior to the death of Celestina. 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 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. As stated in a long line of cases, one of the decisive characteristics of a donation mortis causa is that the transfer should be considered void if the donor should survive the donee.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA presence and that of each other have in like manner subscribed our names as witnesses. 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 the 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.32 In other words, love and affection may also underline transfers mortis causa.

The distinguishing characteristics are the following: causa are 1.

of

a

donation mortis

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 the ownership (full or naked) and control of the property while alive;

- When the transferor retains ownership or title whether full or naked ownership as long as he retains ownership so he did not intend yet to transfer the title to the done during his lifetime is one characteristic of donation/ succession mortis causa. 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; - In this case, he already transferred the property although he can revoke. Why considered mortis causa? The title itself is transferred although the transfer is revocable. In a real donation, can a donor revoke the donation for any reason? (Because I think you are ugly. Sa una gwapo ka karon pangit naka. ) NO but here, for any reason you may revoke. In succession, wills are essentially revocable. At any time for any reason or without any reason at all, it may be revoked. 3. That the transfer should be void if the transferor should survive the transferee. - In Succession, the heirs should not die ahead of the testator or decedent. To be an heir you should succeed the decedent, you should not predecease the decedent. Any of these characteristics would be present the transfer or

affection of the DONOR for the DONEE, x x x the DONOR does hereby, by these presents, transfer, convey, by way of donation, unto the DONEE the above-described property, together with the buildings and all improvements existing thereon, to become effective upon the death of the DONOR; PROVIDED, HOWEVER, that in the event that the DONEE should die before the DONOR, the present donation shall be deemed automatically rescinded and of no further force and effect; x x x" (Emphasis Ours) Donation mortis causa but it is void. In the present case, the nature of the donations as mortis causa is confirmed by the fact that the donations do not contain any clear provision that intends to pass proprietary rights to petitioners prior to Cabatingan's death.14 The phrase "to become effective upon the death of the DONOR" admits of no other interpretation but that Cabatingan did not intend to transfer the ownership of the properties to petitioners during her lifetime. Petitioners themselves expressly confirmed the donations as mortis causa in the following Acceptance and a nd Attestation clauses. That the donations were made "in consideration of the love and affection of the donor" does not qualify the donations as inter vivos because transfers mortis causa may also be made for the same reason. Considering that the disputed donations are donations mortis causa, the same partake of the nature of testamentary provisions and as such, said deeds must be executed in accordance with the requisites on solemnities of wills and testaments under Articles 805 and 806 of the Civil Code. The deeds in question although acknowledged before a notary public of the donor and the donee, the documents were not executed in the manner provided for under the above-quoted provisions of law. Thus, the trial court did not commit any reversible error in declaring the subject deeds of donation null and void.

Would it matter that the deed of donation was in a public document or notarized? Should we just disregard the public document because it is not in a form of a will? Yes. Even if it is in a public document, even if it is notarized because it is not in a form of a will. Tha t’s the simple reason. CUEVAS v. CUEVAS

Hence, the crux of the controversy revolves around the following provisions of the deed of donation:



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA ay mamatay na ay inilalaan ko sa kaniya. There is an apparent conflict in the expression above quoted, in that the donor reserves to herself "the right of possession, cultivation, harvesting and other rights and attributes of ownership while I am not deprived of life by the Almighty"; but right after, the same donor states that she "will not take away" (the property) "because I reserve it for him (the donee) when I die." Disposition inter vivos 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. It is apparent from the entire context of the deed of donation that the donor intended that she should retain the entire beneficial ownership during her lifetime, but that the naked title should irrevocably pass to the donee. It is only thus that all the 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 and attributes of ownership," she meant only the dominium utile, not the full ownership. As the Court below correctly observed, the words "rights and attributes of ownership" should be construed ejusdem generis with 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. (Ma’am: *shares* real life sad stories about donation)

memorize. And you have to memorize because the definition gives us what succession is all about. So here in Article 774, succession is actually a mode of acquisition. It is a manner by which you could acquire property. It is not the person, it is not the right, it is not the obligation but it is the mode. Actually, thi s is mentioned under Article 712 of the Civil Code which you discussed before in property. Art. 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 estate and intestate succession, and in consequence of certain contracts, by tradition. They may also be prescription. (609a)

acquired

by

means

of

So, it is a mode of acquisition although in Article 712, we have the original mode and derivative mode of acquisition. What is the original mode? There is no prior owner of the property. You are the first owner of the property. How can you become the first owner? It could be by occupation, by intellectual creation. You compose a song and you have it copyrighted. So you are the owner of that creation, it is from which that song originated.

In derivative mode, there is a previous owner. It is just transferred from one person to another like donation, testate and intestate succession. It is actually a derivative mode because there is previous owner and only it is just transferred. Art. 775. In this Title, "decedent" is the general term applied to the person whose property is transmitted through succession, whether or not he left a will. If he left a will, he is also called the testator. (n) If you’re not sure, use the word decedent. It refers to the person who died with or without a will. But to be more technical, if he left a will, he is called the te stator.

*10-minute break* JUNE 23, 2014 (SECOND HOUR) Art. 774. Succession is a mode of acquisition by virtue of which the property, rights and obligations to the

Art. 776. The inheritance includes all the property, rights and obligations of a person which are not extinguished by his death. (659)

Article 776 defines inheritance. Article 774 defines succession.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA What will be inherited again? Properties, rights and obligations which are not extinguished by death. The law qualified those which are not extinguished by death because there are rights and obligations which are extinguished by death. These are the subjects of succession actually. These are the properties that can be inherited: properties, rights and obligations.

We go first to the properties. (Called student) When you say property, in your law on property, what are the kinds of property? Personal properties and Real Properties When you say personal property, what is a personal property? (Article 417) What is the other term for personal property? Movable property Can you give us examples of movable properties? (Student answers: clothes that I wear, those capable of being transferred, and those which are not attached to a particular immovable property) A car, is it personal property? Yes. If it is personal, it is movable, in fact very movable. Jewelry, furniture, microphone… How about immovable properties? (Article 416) What is the other term for immovable properties? Real properties... Usually, these are the subjects of succession meaning they can be transmitted by succession.

How about intangible properties, what are intangible properties? (Student answers: Properties which cannot be seen or touched) Do they have legal existence? (Yes) Can they be transmitted by succession? (Yes) Can you give examples of intangible properties? (Copyright, Invention or composition of song)Aside from a copyright, can you give us another example of intangible property? What’s your undergrad? (Accountancy) Accountancy man diayka , what are other examples of intangible property? (Goodwill, franchise, franchise, patents) patents) Sothose are examples of properties which cannot be seen, but has legal existence and therefore, they are considered properties transmissible by succession. Insofar as properties are concerned, they should not be illegal. They should not be outside the commerce of men. They should not be prohibited. They should be licit. When the property is considered illegal or prohibited, can that property be transmitted by succession? No because again one important, it should be licit. To be licit, as I already mentioned, it should not be prohibited, it should not be outside the commerce of men, it should be legal. How about a property called res nullius? (No) What do you mean by res nullius? (Those which do not belong to

owned by the community, by everyone. So they are considered outside the commerce of men. They cannot be transferred by succession. They cannot be appropriated. There are certain concepts in labor law or political law which also deals with property. In constitutional law, if you are deprived of your life, liberty and property without due process of law. Under the labor code, you cannot be deprived of your employment because it is your property right and before you can be terminated from employment, the employee has to be served with twin notice if it is based on just case or a notice if it is based on authorized cause. Can it be transferred? (No) Why? For example, you are the CEO of a multinational company and you are about to die, can you designate your daughter or transfer to her by will your position? (No, It is a purely personal right based on personal qualifications) Take note of employment, even though it is considered property under labor and constitutional law, they cannot be considered property under succession which can be transferred. So whether you are a CEO or a janitor, you cannot transfer your employment by succession. How about the human body? (No) So you cannot give to your boyfriend your heart as remembrance niya , para maremind maremind siya of your undying love? (GR: No but except under Organ Donation Act)

When you say property again, movable property or immovable property even intangibles, incorporeal property, they can be transferred by succession as long as they are licit. They are legal, they are not prohibited, and they are not outside the commerce of men, not res nullius, not res communes. So they can be transferred. Insofar as the human body is concerned, general rule also, the human body or organ cannot be transmitted by succession because the human body is incapable of appropriation. It cannot be a property under the law on property. The exception is under the Organ Donation Act or RA 7170 . Although under Organ Donation Act, you can transfer the organs or parts of your body by will or deeds of donation. When you say by will, it is what you call a legacy if it involves a personal property. We will just discuss insofar as the legacy of an organ of part of the human body. What are the important provisions of RA 7170 that you have to remember? Under Section 6, who may become legatees or donees? 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



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA (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 therapy or transplantation needed by him. So remember, these are the persons or specific institutions which can be recipients of organs and their specific purposes. It cannot be for sentimental reasons. It has to be for the reason mentioned by the law. How do you effect a legacy of a human body? Under section 8(A)… Section 8. Manner of Executing a Legacy . –

(a) Legacy of all or part of the human body under Section 3 hereof may be made by will. The legacy becomes effective upon the death of the testator without waiting for probate of the will. If the will is not probated, or if it is declared invalid for testamentary purposes, the legacy, to the extent that it was executed in good faith, is nevertheless valid and effective. The legacy becomes effective upon the death of the testator. So dilipwedenabuhi pa siya, kuhaannanimosyaug heart. Di ba? So, upon the death of the person… Without waiting for probate of the will… will … Because when we go through testamentary succession specifically Article 838, probate is actually mandatory. When a person dies with a will, the will has to be probated. But here, even without waiting for probate, effective nasiya. Nganokaya? Of course, it is because it for therapy, transplantation. Kabaloba moa ng probate, nubo pa kayo na 3 years siguro. So kungmaghatagkaug heart or kidney, magprobate pa ka, mamataynaangimonghatagan. So wala nay probate nakinahanglan before maeffectang legacy.

Now if the will is not probated or declared invalid for testamentary purposes… purposes … because insofar as we are concerned there are formalities and the law is very strict and the process is very complicated. Example, nakalimotka (?) and the will turns out to be void, what will happen now to heart or kidney? The law says that it is still valid and effective to the extent that it was executed in good faith. For as long as in good faith, valid and effective gihaponangimuhang

under legacies, you can actually devise or bequeath a property which is not owned by you as long as after you death, that will be acquired by your estate and to be given to the devisee . GR you cannot devise or bequeath what you do not own. So the property should be owned by the decedent. We now go to rights. Rights may be transmitted by succession also. GR when it comes to rights, patrimonial rights are transmissible. What do we mean by patrimonial rights? Those rights which relate to property… What are these rights which can be transmitted? Rights arising out of a contract like when you enter into a contract of lease. You are the lessee and there is also the lessor. As lessee, you have rights in that contract. What are those rights? That as long as I pay my rent I can remain in peaceful possession and occupation of the property. If you are the lessor, your right is to collect the rentals. Those rights even if the lessee of the lessor dies, the rights are transmitted. So the lessee for example dies, the lessor cannot say Pataynaman to si lessee. Hawanamodiha kay dilikamoakongkakontrata. No. The heirs of the lessee inherit the rights of the lessee. So they can continue paying the rest for as long as di pa taposang contract of lease. They can insist on remaining in the property. Same thing when the lessor dies, the heirs of the lessor may continue to collect the rentals. Right of insurance – The right of insurance can be transmitted by succession as illustrated by Grepa Life v CA. In this particular case, there is a group life insurance entered into by Grepa Life and DBP. Why is there such a contract of life insurance? Because DBP lends it money to those who would like to avail of housing loan. So, katongmganagloan, as security for their loan, (?) Mangutangsilasa DBP for their houe construction and promise to pay the loan after a certain period of time and also as security, the house can be mortaged to DBP. Additional security is that there is a group life insurance, that DBP would insure the lives of borrowers, mortgagors of DBP such that if the borrower-mortgagor dies prior to payment of loan, Grepa Life would have to pay DBP para upon the debt of borrower-mortgagor, extinguished nasya. That’s what we call mortgage redemption insurance which is (?) So here, one insured was Dr. Leuterio because he applied for life insurance plan being a housing debtor of DBP. Prior tp paying his loan, Dr. Leuterio died and his heirs insisted that Dr. Leuterio is a member of the group life insurance plan,Grepa Life should pay DBP because that is the contract between and if that happens, DBP should no longer collect from the heirs of Dr. Leuterio. But here, Grepa Life did did not pay. So the heirs of Dr. Leuterio filed a case against Grepa Life. One contention of life is that in the





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA insurable interest or not, and such person may recover it whatever the insured might have recovered, recovered ,[14] the widow of the decedent Dr. Leuterio may file the suit against the insurer, Grepalife.

buyer namatayna.Iyanalangmgaanakangnabilin. What are the rights of the children? Aside from filing an action for specific performance, they can file an action to compel the seller to reduce the deed of sale into a public document.

Because being an heir of Dr. Leuterio, whatever rights Dr. Leuterio had over the insurance were transmitted to his heirs.

Action to recover possession (AttyEspejo: Nasagolnisya. Walanisyaapil?)

Another would be an action for forcible entry or unlawful detainer. So the right of file an action of forcible entry and unlawful detainer. There is an intruder or usurper of your property and before you could file the action you died, your heirs can file the action.

The right to Civil liability . If you are the victim and you were hit by a speedy truck. Na injuredka, You sustained injuries and incurred expense. Pwedekamakarecoversanakabangga but if before kanakasingilnamatayka, your children can file the action to recover damages.

An action against or by the heirs to compel the execution of a public document under 1357 of the Civil Code.

So these are the examples of patrimonial rights which are transmitted by succession.

Art. 1357. If the law requires a document or other special form, as in the acts and contracts enumerated in the following article, the contracting parties may compel each other to observe that form, once the contract has been perfected. This right may be exercised simultaneously with the action upon the contract. (1279a)

There are also patrimonial rights which cannot be transmitted by succession. Even if theoretically they relate to property, they cannot be transmitted by succession. What are these rights?

Art. 1358. The following must appear in a public document: (1) Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sales of real property or of an interest therein a governed by Articles 1403, No. 2, and 1405; (2) The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains; (3) The power to administer property, or any other

When it is provided in the contract itself that it is not transmissible. The stipulation will govern. Example: Contract of Lease. Ordinarily, the rights under such contract is transmissible but there is no prohibition if the lessor or lessee would provide in the contract that in case either party dies, the rights of the lessor and the lessee are extinguished. So upon the death of either the lessor or lessee, there is no transmission of rights by stipulation. Usufruct. Under Article 603 of the New Civil Code, the GR is in case of death of either parties in the usufruct, the usufruct will be extinguished. Although again there is no provision if the parties will provide that the usufruct will continue after the death. But the GR is death extinguished a usufruct unless otherwise provided.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Now, under the law on tenancy (RA 3844). Na bamoy elective on agrarian law?Wala no? You still have to know because a lot of cases involve that law. For example, (?) If it is really agricultural leasehold tenancy, so nagatanomsya, nagacultivateug plants and then every harvest nagahakotsya.Iyaha 25%, imoha 75%. So the tenant cannot be ejected from the property and if he dies, is the tenancy extinguished? Dili syamaextinguish. The tenancy is transferred to the heirs but qualified because the heirs has to have to qualification of a tenant and has to willing and able to cultivate the land. And isalangangpwedemagsucceed. So if you have a tenant and naasyay dose naanak, it does not mean na (?) No. Magpililangsailaha. Perokungwalasyang successor, in that case, it is extinguished. When it comes to tenancy, pwedesya transmitted. Pwedepudsyamaextinguish. So those are examples of rights that are extinguished by death. Purely personal rights cannot be transmitted even by succession, even if nay will. They cannot be transmitted. They are extinguished by death. What are these purely personal rights extinguished by death? Parental Authority . The law provides who has substitute parental authority upon death or absence of the parents but it is provided for by law. Dili sya by succession. Marital rights relating to persons and property . So if husband or the wife dies, (?) cannot by will or by succession transfer his marital rights to his brother or sister. Extinguished siya by death.Either relating to the property or person of spouse extinguished by death. Action for legal separation – Of course, by the death of katongnagfile, extinguished naang marriage. Right to receive support will not be transmitted by

certain age like 60 buhi pa ka, after that tagaannakaug annuity. Kung namataynaka, walanapudang annuity kaya ng basis sa annuity is your survival or your existence. Your heirs cannot claim or insist to continue receiving the annuity. It is extinguished by death. Ang insurance kay makuhasyapagnamatay. Right to revoke a donation by reason of ingratitude . If you are the donor and you have the right to revoke the donation because the donee has committed an act of ingratitude but before revoking the donation you died, walana. The heirs cannot exercise that right. They can no longer revoke the donation. So that right is purely personal and cannot be transmitted by succession.

Of course again, employment in succession is a purely personal right which cannot be transmitted . A public office cannot be transmitted by succession because it is a public trust, not a right. Now we go to obligations. What is the GR with respect to obligations? Obligations in general are transmissible. So if inyohang parents nagkautang, transmissible nasyasainyoha. You can actually be held liable but there is a caveat: only up to the extent of the value of the inheritance. So if you inherited nothing and there are debts, you cannot be compelled to pay anything because up to the value lang of the inheritance. If zero imong inheritance, zero pudimongibayad. If you inherited a property worth 10 million, naasilayutangna 15 million. Only up to the extent of the inheritance, so if 10K hantoddadtolangkutob (Bisaya Grammar Check Pls) Sa 5 million, kinsamubayadana? Walana. (?) The heirs cannot be made personally liable to heirs of the decedent. Although if you still remember in obligations and contracts, halimbawa your parents owned 15M and then the heirs inherited 10M but the heirs still pay 15M voluntarily, they cannot recover that payment under the principle of natural obligations. But again, dilisilamacompel to pay but if



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA debt because by reason of the payment the debt, their residual shares are diminished. So ultimately the heirs pay the debt or shoulder the debt. The debts are transmitted. That is the more popular and accepted view, that debts are tr ansmitted but only up to the value of the inheritance. We have here the case of Liu v Loy. (Recitation) Note: I included only the questions; Read the case to know the answers When was the contract to sell entered into? Kinsa man nagenter into that contract? And the contract of sale?Asanamansi Liu during that time?Buhi pa basi Liu that time or patayna? So what happened? Which should be respected, the contract to sell or the contract of sale and Why? In a contract to sell, is there already a sale? So what is the nature of a contract to sell? In that contract, there is still no sale because of the condition that purchase price must be fully paid first. And when that obligation is fulfilled, the obligation of the seller to convey arises. So he will now execute a contract of sale. In a contract of sale, there is already a sale. But as we have learned before, even if it is just a contract to sell, there is already an obligation on the part of the seller that is once the buyer fulfils the condition which is the payment of purchase price, the obligation to convey now arises. That obligation when he died was transmitted to his heirs. The heirs are now bound by that obligation. They cannot just disregard the obligation and enter into another transaction over the same property even if it was a contract to sell. So that is the case of Liu v Loy JUNE 30, 2014

case, based on the principle that Liu v. Loy (recap) - In that case, obligations are transmitted. The obligation incurred by the decedent during his lifetime in so far the contract to sell is

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 ultimately 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, as observed by Victorio Polacco 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, i.e., is contracted intuitu personae, in consideration of its performance by a specific person and by no other. Petitioners being the heirs of the late Rosendo Alvarez, they cannot escape the legal 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 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 li able only



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Because by legal fiction, the monetary equivalent thereof devolved into the mass of their father's hereditary estate. Meaning, even if the land is no longer at the time of his death because prior to his death he sold such but when he sold the land, he got money in exchange and the money fall part of his estate and that money is part also of the inheritance obtained by the heirs of Alvarez. Having inherited the monetary equivalent of that property then they are liable also to return the property or its monetary equivalent.

General Rule in Obligations: They are transmissible. Debts they are transmissible. What are the exceptions, if any? 1.

2.

It can be made intransmissible by stipulation of the parties. Just like what I explained before in a contract of lease, there are rights and obligations arising in a contract of lease so ordinarily if either the lessor or lessee dies the obligations are passed on to their respective heirs but they can declare or stipulate in the contract that in case of death of either party, the contract is extinguished. There is no prohibition to that. Purely personal obligation. Again, marital obligations this cannot be transmitted. Obligation to support cannot also be transmitted. Obligation to contract of piece of work but of course when there is already downpayment then the heirs can be made to return the downpayment when it is not commensurate to the work done. They have the obligation to pay the downpayment. Criminal liability is a purely personal obligation. Obligation to pay taxes – claim is against the estate.

*** Only to the extent of the value of the inheritance can the heirs be made liable.

when the donation is inofficious, it may be reduced so that the legitime may not be prejudiced but only after the death of the parents. During the life of the decedent, you cannot question any disposition made by him. You are not in the position, you have no personality to question because you might predecease your parents and there is nothing for you to inherit in the first place. FELIPE v. HEIRS OF ALDON

Two questions come to mind, namely: (1) Have the petitioners acquired the lands by acquisitive acquisitive prescription? (2) Is the right of action of Sofia and Salvador Aldon barred by the statute of limitations? Anent the first question, We quote with approval the follo wing statement of the Court of Appeals: xxx Now then, even if we were to consider appellees' possession in bad faith as a possession in the concept of owners, this possession at the earliest started in 1951, hence the period for extraordinary prescription (30 years) had not yet lapsed when the present action was instituted on April 26, 1976. As to the second question, the children's cause of action accrued from the death of their father in 1959 and they had thirty (30) years to institute it (Art. 1141, Civil Code.) They filed action in 1976 which is well within the period .

Atty. Yangyang-Espejo: For the purpose of prescription, you start counting from the time of death of the decedent. When the heirs’ right to question be vested.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA All that the respondents had was an expectancy that in nowise restricted her freedom to dispose of even her entire estate subject only to the limitation set forth in Art. 75 0, Civil Code. So whatever properties that remain in her estate at the time of her death those were the only properties that (inaudible) to her heirs. No more, no less. Let’s go back to Article 777. The operative word there is DEATH. Prior to death, expectancy or inchoate right. Upon the death, the rights are made effective. They are already vested.

What is DEATH? For the purpose of Succession, you have to know. 2 kinds of death: 1 – Actual death (literal) According to Organ Donation Act of 1991, Death (actual death) defined it is the irreversible cessation of circulatory and respiratory functions, or the irreversible cessation of all functions of the entire brain including the brain stem. A person shall be medically or legally dead, if either: 1. In the opinion of the attending physician, based on the acceptable standards of medical practice, there is an absence of natural respiratory and cardiac functions , and attempts of resuscitation would not be successful in restoring those functions or; 2. In the opinion of the consulting physician, concurrently by the attending physician, that of the basis of the acceptable standards of medical practice, there is a cessation of all brain functions and considering the absence of such functions further attempts of resuscitation, or continuous support and maintenance would not be successful in restoring such function

opening his succession till after an absence of ten years. If he disappeared after the age of seventy-five years, an absence of five years shall be sufficient in order that his succession may be opened. (n) For the purpose of opening his succession meaning settling his estate, transferring his properties, rights and obligations to his heirs, the person is considered dead when he is absent for a period of 10 years. Not just absent that he just went abroad and you are chatting, it must be you don’t whether he is dead or alive. Totally no idea. So after 10years for the purpose of opening the succession, he can be considered dead or if he disappeared after the age of 75, an absence of 5 years would be sufficient. (b) EXTRAORDINARY or QUALIFIED PRESUMPTION Article 391. The following shall be presumed dead for all purposes, including the division of the estate among the heirs:

(1) A person on board a vessel lost during a sea voyage, or an aeroplane which is missing, who has not been heard of for four years since the loss of the vessel or aeroplane; (2) A person in the armed forces who has taken part in war, and has been missing for four years; (3) A person who has been in danger of death under other circumstances and his existence has not been known for four years. (n) For the purpose of opening the succession, we need 4 years. What would be those circumstances where there is danger of death? Fire breakout, volcanic eruption, conflagration, typhoon, flood or other natural calamities.





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA REAPPEARANCE – presumption of death cannot prevail because it is merely a disputable/rebuttable presumption. EASTERN v. LUCERO Presumption of death would n ot apply. You You need not wait for 4 years before he can be presumed dead. It is undisputed that on February 16, 1980, the Company received three (3) radio messages from Capt. Lucero on board the M/V Eastern Minicon the last of which, received at 9:50 p.m. of that day, was a call for immediate assistance in view of the existing "danger": "sea water was entering the hatch"; the vessel "was listing 50 to 60 degrees port," and they were "preparing to abandon the ship any time.' After this message, nothing more has been heard from the vessel or its crew until the present time. 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, quite logically. are sufficient to lead Us to a moral certainty that the vessel had sunk and that the persons aboard had perished with it. upon this premise, the rule on presumption of death under Article 391 (1) of the Civil Code must yield to the rule of preponderance of evidence. As this Court said in Joaquin vs. Navarro 4 "Where there are facts, known or knowable, from

property is concerned such that any rights or obligations thereto became binding and enforceable upon them. Again, pursuant to Article 777 of the new Civil Code, the rights of succession are transmitted from the moment of death of the decedent. So it is not when the creditors are paid that heirs become the owners of the property. It is from the moment of death. In the case of Emnace v Court of Appeals… (Recitation)

What happened in this case? What are these rights which the wife inherited? Remember, as we have discussed before, can a right to be a partner be transmitted? Why? That trust and confidence enjoyed by the partner, if he dies, may not necessarily be enjoyed by the heirs of the deceased partner. That is why also death of a partner is a ground for the dissolution of a partnership. But here, we are not talking about the right to be a partner but the right to compel the delivery of his share in the assets of the partnership as well as for the accounting and liquidation. That right can be transmitted to the heirs.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA question is: If there is already a proceeding for the appointment of an administrator, naa nay na appoint, can any of the heirs file actions for and in behalf of the estate. In the case of Tabanao (referring to Emnaces), wala pay proceeding at all. So the heirs may file the action for and in behalf of the estate. Here naa nay proceeding, ginahulatnalangkinsamaappoint. Can anyone of the heirs file an action for and in behalf of the estate? YES. Because if we disallow them to file an action, the who would file? So SC said pending the filing of administration proceedings, the heirs have the legal personality to bring suit in behalf of the estate of the decedent in accordance with the provisions of 777 of the NCC. Even if administration proceedings have already been commenced, the heirs may still bring the suit if an administrator has not yet been appointed. So this is in accordance with rules on special proceedings. This court recognized the legal standing of the heirs to represent the rights and properties of the estate under administration pending the appointment of an administrator. Now, what if there is already an appointed administrator or executor for the estate. Can anyone of the heirs just file the action for and in behalf of the estate? Naa nay naappoint. The rule is the suit should be filed by the executor or administrator. Siyalangangmagfile. Cant there be instances where the heirs

death of the decedent. Even prior to executing the affidavit of self-adjudication, she succeeded to the property. She can sell the property because by succession, she became the owner of the property. But of course, for the RoD, the transfer of the property from the name of the parents to the name of the buyer then the heirs has to execute an affidavit of selfadjudication para matransfer but not to make the transfer valid but just as a formality. In the case of Gebero v IAC, even if there is no yet extra judicial partition, an heir can already sell his share in the estate. So, ABCD are heirs of the decedent. A can already sell his hereditary share even before extra-judicial partition. And once there is already an extra-judicial partition, that portion allocated to A is the one which is deemed sold by him. So that is the rule, even prior to extra-judicial partition. But again, prior to extrajudicial judicial partition, … specific portion of the estate, that sale would be void. Why? Prior to partition you cannot specifically say that this my part, this my share. All of you are co-owners over the property. Each and every portion of the property is co-owned by everyone of you. You cannot say naikaw lang. But in case, upon partition, …saimoha then that sale becomes effective. So that is insofar as extra-judicial partition is concerned.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA The second is WON the sale was limited only to A ’s original share in the other half. Did that include his inheritance from his mother? The SC YES because when A sold his share over the particular lot, he already inherited the portion which previously belonged to his mothers. So unless, he would expressly exclude that in the deed of sale, all his share as of the time when he made the sale are deemed included because he already has the right to dispose of those shares. It is not only limited to the ½ portion but also to his share in the other half which he inherited from his mother. That’s in the case of Gebero(?) So even without an extrajudicial partition, even if the sale did not mention the death of his mother… In the case of Lorenzo v Posadas, transmission of … is passed upon the time of the predecessor ’s death notwithstanding the suspension of the actual possession or … of the estate by the beneficiary. So the … is measured by value of the property transmitted from the time of death regardless of it appreciation or depreciation. So, value at time of dea th of the decedent…

Going back to our presumptions, we have also under presumption under the Rules of Court regarding death under Rule 131 section 3(k)(k). Because under the RoC, in your evidence, there are presumptions of survivorship. Like kungnaaynamatay, duwakabuok, nagkuyogsilatapos they are

end, they both died but whoever died ahead of the other, that would make a difference. So whoever alleges that one died ahead of the other, he has to prove the same. In the absence of proof then it is presumed that they died at the same time and there will be no succession between the two of them. Whatever properties left by the father will not be inherited by the son.Whatever properties left by the son will not be inherited by the father.Walay succession and please remember this because this will also matter when w e go to the concept of reservatroncal which we will discuss under Article 892. We have no rule on survivorship under RoC. …Not for the purpose of succession ha? Halimbawaanglolo 80, angapo 15 under the rules, considered nanaunapatayanglolokaysasaiyanhangapo considering his advanced age, he would not have survived that accident. But for the purpose of succession, we do not have that rule.

Again, it has to be proved who died ahead of the other. In the absence of proof, they shall be considered to have died at the same time. Again, remember ha? Death is the operative act which transfers the property by succession. Without death, there can be no transfer of property by succession. That is the GR.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA death but what is possible is that the decedent may provide for prohibition on partition. They cannot partition the property within certain period of time or he cannot sell or alienate the property. Even if you inherited the property, you cannot sell the property. For how long? The maximum period is 20 years. Even if the decedent said in his will, my heirs cannot sell the property forever, for 50 years, for 100 years then that limitation is only effective up to 20 years. So that is the only limitation. He cannot say no transmission from the moment of death. That refers of course to the compulsory heirs insofar as their legitime is concerned or to the legal heirs insofar as their legal shares are concerned. Because if it is a legacy or devise or a voluntary inheritance, he can provide for limitations. Dili saihatagsaiyaha until after 5 years from my death. Again, insofar as the legitime is concerned, the transfer happens from the moment of death. If we are talking of legitime, prohibitions on partition or prohibitions to alienate may be provided by the decedent for a period not exceeding 20 years. JULY 3, 2014

by Sigrid Mier So, we now proceed to Art. 778. Art. 778. Succession may be: (1) Testamentary;

Or, As we will discuss later, there can be a will, there can be a valid will even if it does not designate an heir. How can there be such a will? When the will contains only a disinheritance. Why is it valid? We will just discuss later. But really, because in that will, there is no heir designated. Q: So can there be testamentary succession? There is a will but it merely mentions a disinheritance. A: there is no testamentary succession. The will shall be given effect insofar as in disinherits the heir. But with respect to the disposition of the properties to all the other heirs not disinherited, it would be done by intestate succession. Of course, under art. 779, the will should be executed in the forms prescribed by law because our law provides for formalities in the execution of wills. If the formalities are not followed, the will cannot be given effect. So even if there is a will but it is not in the form prescribed by law, it cannot be given effect, there will be legal or intestate succession. Dili gihapon mahatagan ug effect ang will. Now, testamentary succession is preferred over intestate succession or legal succession. Why? Because if a person executes a will, it is presumed that he wants his will to be given effect. A person does not execute a will just for the sake of executing a will. Because if he wants the properties after his death to be



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Atty Y-E: okay, as I mentioned before, dba while we discussed the property, rights and obligation, if you are talking of properties, these must be owned by the decedent. So here, the conjugal lots were not owned separately by the decedent. It was part of the conjugal property. So she could not have validly disposed of, in her will, the properties belonging to the conjugal partnership. Atty Y-E: Okay, so, even if assuming those provisions are invalid, as long as they can be separated from the valid provisions, there invalidity should not result in the total invalidity of the will. Again, remember that testacy is favored over intestacy. As long a s there is a will, we give effect to the will. Just disregard those invalid provisions.



There is a will but the will becomes ineffective

So the provisions of the will cannot be followed. Those are enumerated in art. 960. We go first to Art. 780. Art. 780. Mixed succession is that effected partly by will and partly by operation of law. (n) So, partly by will or partly by operation of law. Okay. Q: when can there be instances of mixed succession? Meaning the estate is distributed partly by will or partly by legal succession?

Atty Y-E: So in effect, because of the conformity by the husband, the court said it could give effect to that provision. To give effect to the wishes of the testator is the principal law on matters of disposition. Remember again that testacy if favorable than intestacy. The court even said that:

A: for example, a decedent did not dispose of all his properties in the will. So his estate is equivalent to 10M. He disposed by will of his properties only to the extent of 6M. So ang 4M worth of properties wala niya gimention sa will.

So compelling is the principle that intestacy should be avoided and that the wishes of the testator should prevail that sometimes the language of the will can be varied for the purpose of giving it effect .

A: the 6M worth of properties shall be disposed of in in accordance with the will. The remaining 4M not mentioned in the will shall be distributed by legal or intestate succession.

So in that case, if the testator expressed her wishes that the conjugal property should be partitioned in accordance with the will, with the conformity of the husband, then the

If for example, there is also a will but some of the provisions of the will are void, they cannot be given effect, then only those provisions which are valid shall be respected. Those provisions which are not valid, shall be disregarded, so

Q: so how will these properties be disposed?





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA heirs, they will get their legitimes whether or not the testator wants. This is forced upon the testator by law. b. voluntary succession – meaning depende sa testator kung hatagan niya. This is the succession by voluntary heirs. Katong dili considered as compulsory heirs. So voluntary heirs can be written in the will, like friends of the testator, the brothers or sisters of the testator. They are not compulsory heir but if they are given something in the will, that is what we call voluntary succession. They are instituted to the free portion. c. contractual succession – this is under the

collected yet? Didto na sila nacollect pagkamatay ni decedent. So who is entitled to the rental income which accrued during the lifetime of the decedent? It will not go to the heir. It will be part of the estate. Sa decedent na sya. So only those which accrued after the death of the decedent as part of the heirs ownership. Halimbawa naman nakadawat sya ug parcel of land, after the death, naay accretion, so who owns the accretion? Of course the heir, kay ang accretion ang-occur na after the death. So, those property which accrue from the moment of death, these will be part of included in the inheritance. Let’s go to 782:



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Q: Can a compulsory heir be at the same time a voluntary heir? Note: Art. 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents 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) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287.

The following are the distinctions: Heirs The heirs succeed by general right or universal title maybe to all of the properties or to a fraction or to an aliquot portion or ideal share. Ex. I hereby institute A as heir to my entire estate or to ½ of my estate or to 20% of my estate. He is still an heir. Why? Because the decedent did not entitle him to a specific property, merely a share, an

Legatees or Devisees

They succeed by special or particular title. They merely receive specific properties. Ex. I hereby give to A my 1M. So that is a legatee. Ex. I hereby give to A my building in Claveria, Davao City. So that is a devisee.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA is only up to the extent of the value of the inheritance.

remission.

Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

The heirs succeed to the remainder of the estate. After all the debts, devises and legacies have been paid. So meaning, when it comes to voluntary heirs, they are entitled to what we call the After residual share. payment of all the liabilities. After payment of all the devises or legacies. Meaning, kung voluntary ka, may naay preference ang legatees or

Example:

They succeed to the determinate thing or amount given. Dili residual share kay they are given specific properties. Unless of course, the legacy or devise, would already be

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a) Now under the law, if there is pretirition, meaning a compulsory heir in the direct line is omitted in the will, like a son of the testator, he did not mention the son at all in the will. He gave all his properties to his other children, to his friends but no mention at of the son.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA the disposition of this estate, to take effect after his death. (667a) So art. 783 defines a will. Based on the definition, it is defined as an act. The act of disposing or controlling the disposition of the estate. 



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An act whereby a person is permitted is permitted : meaning, dili diay absolute right ang execution of the will. It merely depends on the privilege or permission given by the state With the formalities prescribed by law : meaning, it is formal. To control, to a certain degree, the disposition of estates : so by means of the will, the person is able to control the disposition of the will but not absolutely, because the law says to a certain degree.

A: we have to make a distinction. Insofar as wills recognized here in the Philippines, we have the notarial will and the holographic will. Notarial wills are those which require several formalities. They can be computerized; typewritten, etc. they have the requirements of attestation, witnesses, acknowledgement before the notary public. Holographic wills on the other hand, are those that are entirely written and dated in the hands of the testator. So if you are asked that question, insofar as notarial



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Soundness of mind is required because of the animus testandi requirement. How can you have animus testandi when you are not of sound mind or insane for example.

So we have to know what are the formalities required by law, in the execution of wills. 5.

So persons of unsound mind cannot execute wills because they do not have animus testandi. MONTINOLA v. HERBOSA

U-NILATERAL Meaning the testator cannot condition the making of the will upon the consent or act of another. Siya ra gyud ang magbuot sa iyahang will.

Jose Rizal’s: Mi Ultimo Adios

He cannot condition his disposition to the will also of another person.

Here, no animus testandi, merely an expression of last wish or advice. Therefore, it is not a last will and testament. Basically because there was no animus testandi here.

I hereby give to A my house and lot in Davao City, provided, A will give to me his car.

Remember that there is no intention here on the part

Dili siya pwede nga naay kapalit because when you





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA

Even if gi-probate na sa testator ang iyang will. Because under probate proceedings, there can be probate during the lifetime of the testator that is what we call ante mortem probate as opposed to post

So legal succession will control kay dili man valid ang will. Now A would like to demand his share as illegitimate child. Pero walay pirma sa birth certificate nga illegitimate child sya, ang proof ra niya ang purported last will and testament ra sa testator.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA not executed in the form of a will. It did not observe the formalities of will. Is it required that the said agreement should be in the form of

3.

The determination of the portions which they are to take, when referred to by name.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA What is prohibited here? A disposition wherein another person has to determine whether or not the disposition has to be operative.

second marriage and she died. Would that property be part of the estate of the wife? Because she did not contract a second marriage.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking

Section 9.Evidence of written agreements. — When the terms of an agreement have been reduced to writing, it is considered as containing all the terms agreed upon and there can be, between the parties and their successors in interest, no



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA for reformation to express the true agreement. So how about in wills, is the remedy of reformation available? No. That's in Article 1366 of the NCC.

I'm giving my house and lot to my adopted child A. When you say adopted, technical term man nasya. But as to him, he is not even familiar with the technical term adopted but amgsaiyaha, tagaansi A ug house and lot saTagum City. So the term adopted here can be given different meaning even if it























































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA When a testator omits a compulsory heir in the direct line, the institution of heirs in the will is annulled. In effect, there is revocation by operation of law because all the institutions made in the will are annulled when there is preterition. b) ART 957 of NCC – For example, the testator gave to A his parcel of land in Jacinto St, DC covered by TCT no. *blah* - so it’s a devise – 2 years after the execution of a will the testator sold the very same land to X. So what happens now to the devise? Effective pa ba ang devise? No. it is deemed revoked. What if at the time of death of the testator nabalik sa iyahang estate katong land? Would that revive the devise? No, it remains to be revoked. What if wala dyud diay intention si testator at the time he sold the land to revoke the devise, can it be revived? Which will prevail – the presumption of the law or the intention of the testator? No, the presumption of the law will prevail. For that intention to prevail, the testator should make manifest that intention by some outward or overt act. Unsaon man? Under Art 957, if the testator reserves for himself the right of repurchase the law would not presume revocation. Sale pacto de retro/ sale with a right of repurchase. c) ART 936 of the t he NCC – When a credit has been given as a legacy is judicially demanded by the testator. d) ART 1032 of the NCC – When an heir, legatee or devisee commits an act of unworthiness. e) ART 106 of the FC – If a decree of legal separation is granted by the court, automatically the guilty spouse is disqualified to inherit from the innocent spouse. So if ever there was any testamentary disposition made by the innocent spouse in favor of the guilty spouse, that is already deemed revoked. (2) By subsequent document or instrument “By some will, codicil, or other writing executed as provided in case of wills” So here, there is a 1 st will and then there is another document or instrument which is also in the form of a will (it may be another will or codicil) and that 2 nd document revokes the 1st will. There are 2 kinds of revocation under this mode:

narevoke ba because the revocatory clause says itself that it revokes all prior documents. b) IMPLIED REVOCATION – the 2nd document does not contain any revocatory clause but the contents of the 2nd document are completely inconsistent and incompatible with the 1 st document so they cannot exist together, they cannot be reconciled at all. It is either the 1 st will or the 2 nd will but because the 2 nd will is the later expression of the wishes of the testator then the 2 nd will is deemed to have revoked the 1st will. REQUISITES for revocation by a s ubsequent instrument

(1) There must be testamentary capacity at the time of revocation – it requires soundness of mind. The testator must be intelligent to understand the consequence of his act of revocation; (2) The subsequent instrument must be valid – the 2nd will itself must be valid as a will. Even if there is a revocation in the 2 nd will but the 2 nd will itself is not valid, that will cannot be given effect including the revocation contained in that 2 nd document; (3) The subsequent will or instrument must contain a revocatory clause or be incompatible with the former will thereby showing intent to revoke or animus revicandi; and (4) The subsequent will or instrument must be admitted to probate. For example, the testator executed a notarial will in 1990 giving to A his properties. Subsequently the testator made a holographic will in 1995 giving to B all his properties. Notarial will valid in all respects but it was superseded by a holographic will which is also valid. The 2 wills are completely incompatible with each other. So under the law on revocation, the 2nd will must have revoked the 1 st will. Now the 2nd will was burned – no copy of the will was left (no carbon copy, no photocopy, wala tanan!) and a witness is willing to testify as to the contents of this holographic will because he memorized the holographic will. Who is entitled to the properties of the testator? A is entitled to the properties of the testator because even if the holographic is valid and even if the holographic will revoked the notarial will but because the holographic will was completely destroyed and no copy of the will is available, the will cannot be admitted to probate. As we have discussed in



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA regards the document itself as material proof of authenticity."

(3) By overt act ” By burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court.” What are the overt acts mentioned under ART 830? Burning, tearing, canceling, obliterating . a)

BURNING – it is not required that all of the copies of the will is burned, even the 1 st page if it is the only page that is burned but there is intent to revoke and the act is directed against the entire will.

b)

TEARING – gigisi nimo ! Pwede sa kamot, pwede gunting or shredder (walay nakabutang na shredding noh? Wala pa siguro shredder ing.ani na time  BUT it is equivalent to tearing). So not necessary na murag gyud shredder ang pagka-tear bisan pag kaisa lang nimo gigisi nga bisan gi-scotchtape nimo mabasa pa gud siya pero there is intent to revoke – it amounts to revocation.

c)

CANCELING – If you cancel out, place a line across the words, X the entire document that is equivalent to canceling.

d)

OBLITERATING – when you blot out, you erase, any means of blotting (laway nimo gina-ana mo didto ), tabunan ug papel.

So as long as there is an overt act coupled with an intent to revoke, it amounts to revocation. Act alone without animus revocandi will not produce revocation. Intent alone or animus revocandi alone without an overt act would not amount to revocation. That’s why if we have a will that is torn it is not presumed that it is already revoked unless we proved that it is also done with animus revocandi. UNLESS we fall under the presumptions as we will discuss in the case of Gago v. Mamuyac. But if you see a will that is torn, you have to prove that it was torn with animus revocandi for there to be revocation.

revoked) so he took the envelope - save it from the fire and when he opened the envelope, luckily, the will was not burned at all and kept it until the testator died. Was the will revoked? Was there revocation? A: There was no revocation by an overt act because no act of burning was seen in the will itself. For revocation by an overt act to produce the effect of revocation, there must be animus revocandi and the overt act must be made manifest in the will itself. Burning bisan gamay, tearing bisag gamay na tear basta nay overt act made manifest in the will. Intent alone without an overt act would not produce revocation. But there is another kind of revocation that operated in that case, revocation by operation of law or implication of law because when we go to unworthiness, disqualification, incapacity – an heir who prevents the testator from revoking his will becomes disqualified to inherit from the testator. In that case, the heir is disqualified because he prevented the testator from revoking his will by operation of law as to him, the will is revoked but as to other parts of the will, the will remains to be valid.

REQUISITES

(1) The testator has testamentary capacity at the time of performing that act. (2) The act must be any of the act mentioned under ART 830; Roxas v. Roxas – the act of crumpling was considered by the court to be enough to produce revocation as long as the act is considered as an act of destruction. It is tantamount to an overt act of revocation.

(3) The act must be a completed act. – Meaning, at least a completion of the subjective phase of the overt act. (4) There must be intent to revoke or animus revocandi. (5) The revocation must be done by testator himself or by some other person in his presence and under his express direction. t he Article 831. Subsequent wills which do not revoke the



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA are revoked. We also apply here the DOCTRINE OF IMPLIED REVOCATION – when there is a subsequent will executed after the first will, if they are completely incompatible with each other – the 2nd will completely revoked the first will by implication. If they are not completely incompatible but there are certain provisions which are incompatible, then only those incompatible provisions are deemed revoked. Gago v. Mamuyac (49 Phil 902)

In this particular case, the SC made pronouncements as to when can there be presumption of revocation because as a general rule – we do not presume revocation.

ineffective, the revocation made by that will of a previous will stands because the will still is valid, only the EXECUTION is INEFFECTIVE. Article 833. A revocation of a will based on a false cause or an illegal cause is null and void. (n)

This is a revocation based on a FALSE CAUSE or an ILLEGAL CAUSE. The law says, if that is your basis for the revocation, the revocation is VOID.So what is the effect if the revocation is void? The will which is supposedly revoked still is effective and stands as if there was no revocation. Molo vs Molo

The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. August 28, 2014 Ro.Jo. Article 832. A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation. (740a)

Why was the second will denied probate? The second will was not valid as to form. It is one requisite under the revocation by subsequent instrument or document that the second will should be valid. So if the second will turns out to be void, even if there is a revocation in that second will, it cannot be given effect. So why is it that the first will should be given effect? The second will did not effectively revoke the second will. How about if, the testator executed a first will and then subsequently with intent to revoke, he made a second will. Believing that the second will is valid, he burned or torn the first will. Can we not say here that the first will was not revoked by subsequent document because the second will was not valid as to form nonetheless, the first will was still revoked by an overt act of burning or tearing? Will it be correct?

This involves a valid will. All the formalities prescribed by law have been complied with but the will is INEFFECTIVE because the heirs instituted in the will died ahead of the testator or became incapacitated to inherit or they repudiated their inheritance.

No. Apply the DOCTRINE OF DEPENDENT RELATIVE REVOCATION – REVOCATION – where the act or destruction is connected to the making of a will so as really to raise the inference that the testator meant the revocation of the old, would depend upon the efficacy of the disposition, and if for any reason the new will, turns out to be ineffective or the new will intended to be a substitute is inoperative, the revocation fails and the original will stands in full force and effect.

Therefore, we cannot give effect to the institution, we cannot

So we can say that his act of burning or tearing the first will



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Three modes of revocation – revocation by operation of law, revocation by subsequent document or instrument and revocation by means of overt acts. How can we apply Article 833? How can we prove that the revocation of the first will was based on a false cause. No problem in revocation by operation of law because it’s the law which is not applicable here in Article 833. If it is revocation based on overt acts, burning tearing, cancelling, obliterating – you can prove the false cause by EXTRINSIC EVIDENCE. But if the revocation is based on a subsequent document or instrument, the authority say that the false cause for the revocation should be stated in the second will or document, so only INTRINSIC EVIDENCE is allowed to prove the falsity of the cause in that kind of revocation. Article 834. The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked. (741)

One of the questions in the 1 st exam, but the principle involved therein is that the acknowledgment still stands because it is not an act of disposition (Characteristic of a will: A will must contain a disposition of property). Despite the acknowledgment, because it is not a disposition of property, therefore the acknowledgment is valid even if it not in a form of a will. The recognition still stands even though the will where the recognition is made is revoked. Because even if it is not a will, that document would still be valid. The recognition of an illegitimate child is not a disposition of property.

Distinctions: Republication – it is the re – establishment by the testator of a previously revoked will or one which is invalid for want of proper execution as to form or for other reason for us to give validity to the said will.

Revival – it is the re – establishment to validity by operation of law of a previously revoked will.

The previous will became invalid because of the following reason: The previous will became invalid because of the following reasons: 1. 2.

It was revoked The will did not comply with the formalities

1.

Only revocation by operation of law

It involves the act of the testator; It involves that act of law so it is the testator himself who – without the republishes the will intervention of the testator.

Article 835. The testator cannot republish, without reproducing in a subsequent will, the dispositions contained in a previous one which is void as to its form. (n)

It talks only of express republication or republication by the re – execution. Two modes of Republication: Republication:

SUBSECTION 7. Republication and Revival of Wills

1.

Express Republication or Republication by Re – execution

Intro: For example the testator with intent to revoke torn his will but after five months, he realized that he wanted to give effect to that will and it was a notarial will; he spends so much for the drafting and notarization of that will. So he just decided to paste or scotch taped the will. And then he died later on and that will is found in his possession. Is that will valid? NO. Because it was revoked.

We use this mode of republication if the original will is void as to form , that is, when it does not comply with the formalities provided in Articles 804 - 814; Article 818 (Notarial Wills).

How about that fact that made an effort to paste or taped the will? Still NO that is not the proper mode of REPUBLICATION.

What if the testator had not testamentary capacity at the time when he made the will. Is that will void as to form? No, but it is still a void will.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA 2.

Implied Republication or Republication by Reference

This applies to a will which is void but not as to form e.g. the testator has no testamentary capacity or the testator already revoked his will. How to republish the will?

The testator need not copy all the provisions in the old will. He can just execute a one page document which also in the form of a will and then mentioning in that document that he executed a last will and testament on a certain date and that he revoked that will but he would like to give effect to that will again. So he is republishing that will. So that is why by reference. He referred to the old will in his new will. What if he would like to copy all the provisions in the old will even though the will is not void as to form, is it possible? YES, there is no prohibition. But if the will is void as to form, the only way of republication is by express republication or republication by re-execution. For example the new document, either of them is notarial will and the other is a holographic will, and the way of republication is by reference. He cannot mix the two. The notarial and the holographic because under the law, the latter must be entirely written, dated and signed by the hands of the testator. So if you incorporate by reference in a holographic will, a document which is not in the handwriting of the testator is not allowed. So you can incorporate by reference to a new holographic will an old holographic will. Article 836. The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil. (n)

This refers to the execution of a codicil. What is being mentioned here is republication by reference. This would only apply if the old will is void but not as to form, because again if it is void as to form, it cannot be republished by reference; he has to re-execute the entire will. I also mentioned this as an exception to Article 793, the rule on after acquired properties. If the codicil republishes an old

Article 837. If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil. (739a)

This is a case where the second will expressly revokes the first will. Even if the second will is itself revoked, the revocation of the first will remains. This is the PRINCIPLE OF INSTANTER . The reason behind the principle is that revocation takes effect immediately. It does not wait for the death of the testator to become effective because revocation does not take the form of testamentary disposition. But for example, we have a first will which is impliedly revoked by a second will and the second will is itself revoked. What happens to the first will? The first will is REVIVED. This is an example of revival of wills. Another example of revival: The testator preterited a compulsory heir in the direct line e.g. he omitted his son in the will. So if there is preterition, the institution of heirs in the will cannot be given effect. The estate of the decedent shall be distributed by legal succession. The will is in effect revoked by operation of law because of preterition. But if that heir who was preterited died ahead of the testator, then there is no more preterition because dying ahead of the testator, he never became an heir of the testator. Hence, there is a case of revival. Unless that son left his own child who can represent him, the preterition would still stand. (Hence, no revival in this case) SUBSECTION 8. Allowance and Disallowance of Wills Article 838. No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.

The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern. The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance of wills on petition of the testator.





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA The first paragraph of Article 838 implies that probate is MANDATORY. If the testator died with a will, the will has to be probated. Even if you think that the will is not valid, it has to pass probate because it is only the probate court which can decree or declare that the will is not valid.

final and executory and you can never raise the principle that probate of wills is imprescriptible.

For example, there is a last will and testament giving “A” a specific parcel of land. Based on that will, can A file an action for the recovery of that parcel of land? Or can he file an action for ejectment against the occupants therein? No. Unless the will is allowed probate, it is just a mere scrap of paper. It does not give rise to any rights. You cannot invoke a will which is not probated.

Mercado v Santos

Maninang v Court of Appeals

Probate is required by reason of public policy. For example, if all the heirs just agreed to keep the will (since probate proceedings are expensive and time consuming) and they just extra judicially partitioned the properties among themselves (already published and transferred the titles in their names). Is the extrajudicial partition valid? NO. Can that will still be probated? Yes because the probate of the will is mandatory. Even if they already executed and implemented the extrajudicial partition, still if there is a will, it can always be probated. They are not bound by their extrajudicial partition otherwise the will would be rendered nugatory. Aside from being mandatory by reason of public policy, probate proceeding is also a proceeding in rem – it means that once the decree of the probate court becomes final and executory, it is already binding against the whole world. The requirement of publication must be complied with because it is jurisdictional – it is the one which confers jurisdiction on the probate court and is the one which binds the whole world as to the decree of the probate court.

Once the decree of the probate court becomes final, it is conclusive as to the due execution of the will.

Case for falsification. What is the significance of the allowance of a will? Once the decree of the probate court becomes final, it is conclusive as to the due execution of the will – the will is genuine, not forged, falsified. So if later on a case is filed claiming that the will was forged etc., even if it is a criminal case, it will not prosper. What would be the effect if you allow the criminal proceeding to prosper? Since the probate court already proved that the will is not falsified, if you allowed the criminal prosecution to prosper, it would be disturbing an otherwise final judgment of the probate court. That is not allowed. Res Judicata! Conclusiveness of Judgment. It is already conclusive as to its due execution. But only as to its due execution. In your Special Proceedings, Rule 76 – Rule on allowance or disallowance of wills and also in Rodriguez v Borja, for the probate court to acquire jurisdiction, it is either the will is delivered to the court or a petition is filed. What court has jurisdiction to probate wills? It depends upon the PROBABLE GROSS VALUE of the ESTATE.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Was the client here an heir? NO. So SC held that Article 1052 presupposes that the obligor is not an heir. Here Rosa was not a legal heir because the petition for probate was dismissed and she lost her right to inherit. Because her inheritance was only dependent upon the will, she was not a legal heir. Now that the petition for probate was denied, she had nothing to anchor her claim as an heir. In the same manner, he cannot claim that he is a creditor of an heir because in the first place, the supposed heir is not an heir and he is not a creditor. What is the reason for the rule excluding strangers?

The reason for the rule excluding strangers from contesting the will, is not that thereby the court may be 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 them to be heard with relation thereto (Leviste case citing Paras v Narciso) Butiong vs. Surigao Mining L-13938 July 31, 1968

Christian Harris executed a last will and testament disposing of his properties located in the Philippines consisting of shares of stocks and interests in the Mindanao Mining Incorporated and 1% royalty in Surigao Consolidated Mining Inc. So, Butiong here was constituted as the sole heir; universal heir of the testator, he filed a petition for probate. Now, Surigao Mining Inc opposed the probate upon the ground of forgery. Butiong questioned the personality of Surigao to file the opposition. Because although the properties subject of the will also included shares of stocks and royalties surigao consolidated mining, it has a separate personality from the stock holders. So the fact that he has shares of stock in the company does not follow that it has the right to intervene in the probate or settlement proceeding.

a legatee or a devisee nor a creditor. So, the opposition was denied. (from 2013 tsn) The law says in Article 838 provides that: “The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the testator's a death shall govern.” With that we have: Two kinds of Probate:

1. Ante mortem probate probate – – this is the one instituted by the testator; Even if the will is admitted probate, it does not mean that the will cannot be revoked. 2. Post mortem probate – instituted after the death by the testator Matters Resolved in the Probate

Basic rule: The probate court only resolves matters pertaining to the EXTRINSIC VALIDITY OF THE WILL; what are these matters? – o

o

o

Whether the instrument offered for probate is the last will and testament of the decedent This is a question of identity  Whether the will was executed according to the formalities prescribed by law This is a question of due  execution Whether the testator had testamentary capacity at the time of execution’ This is question of  testamentary capacity

Questions as to whether a certain person is an heir of the



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA 1)

Spouses Ajero vs CA (Issue: ownership of the property)

As a general rule, courts in probate proceedings are limited to pass only upon the extrinsic validity of the will sought to be probated. However, in exceptional instances, courts are not powerless to do what the situation constrains them to do, and pass upon certain provisions of the will. In the case at bench, decedent herself indubitably stated in her holographic will that the Cabadbaran property is in the name of her late father, John H. Sand (which led oppositor Dr. Jose Ajero to question her conveyance of the same in its entirety). Thus, as correctly held by respondent court, she cannot validly dispose of the whole property, which she shares with her father's other heirs. In cases where ownership of the property subject of the estate is in question, as a general rule, the probate court cannot pass upon the ownership of the property. But in this case, the court said that it is exceptional because it is very patent upon the face of the will that the property is not her property. It included a property which is not owned by the decedent. The significance here is just, for the purpose of determining whether or not the property should be included in the inventory of the properties because once you filed a petition for probate, the executor will have to make an inventory of the properties of the decedent, it does not follow that once the executor included a certain property as part of the estate of the decedent, that such inclusion is already final even if that inventory is approved by the probate court. If there are people who opposes the inclusion of certain property in the estate, that question of

Remember, in these cases where the court rule on the intrinsic validity of the will, the ruling of the probate court is merely probational; it is not conclusive . Its ruling is conclusive only to the due execution of the will. Also, it does not follow that once it is alleged that there is preterition, the probate court will automatically adopt the exception. No! But, compare in the case of Maninang v CA, there is a question whether or not it is a case of invalid disinheritance or preterition. So you cannot just escape the probate proper because there is a question of disinheritance and this can only take effect in a valid will. So you have to determine whether the will is extrinsically valid before you can rule on the issue of invalid disinheritance. Or even if there is preterition and there are legacies and devices given in the will. Under Article 854, when there is preterition, the institution of heirs is annulled. But if there are legacies and devices which are not inofficious, they shall be respected. So even if the question of preterition is raised, but there are legacies and devices given, you really have to rule first on the extrinsic validity of the will. Because how can you determine whether or not these legacies or devices are to be given. Natcher v CA

The court acting on its general jurisdiction cannot pass upon matters pertaining to the probate court. Why did that issue on advancement arise? As compulsory heirs, they are entitled to their legitimes. If for example, the testator during his lifetime made dispositions to his compulsory heirs, those disposition should be considered as advances to their legitimes.




































SEPTEMBER 1, 2014 (Justin)

Exception to the GR that only matters pertaining to the extrinsic validity of the will are discussed during probate proceedings. We discussed the case of NACHER and and then CAYETANO. Just remember that when the decree of the probate court becomes final, it becomes conclusive but only as to the due execution of the will. Other matters can be trenched(?) out in a separate proceeding. Art. 839. The will shall be disallowed in any of the following cases:

(1) If the formalities required by law have not been complied with; (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; (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; (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. (n)

If the will was executed with force or duress or fear or threat. This connotes idea of coercion which may be physical or mental coercion. Take note that in obligations and contracts, the presence of these vices of consent would serve to annul a contract, contract is voidable. But their presence in the will makes the will void. Undue influence occurs when a person takes improper advantage of his power over the will of another, depriving the latter of reasonable freedom of choice. It must be of a kind that so overpowers and subjugates the mind of the testator as to the ... And making express the will of another rather than his own. In the case of Icasiano v Icasiano, SC mentioned that there is no undue influence even if some heirs are favored over other heirs because diversity of apportionment is usually the reason of making a will. If you do not favor any heir and you just want them to receive equal shares, then you just might as well die intestate. Fraud is the use of insidious machinations to convince a person to do what ordinarily he would not have done. There must be intent to defraud. SC said that fraud and undue influence are equally repugnant and excludes each other. Their joining as grounds for opposing probate shows the absence of ... evidence for the validity of the will. In fraud, you conceal the real facts in making a will. In undue influence, he knows the facts but his mind and will is subjugated. We have the case ORTEGA v BELMONTE. Placido was 80 yrs. old. He married Josephina who was then 28 yrs. old. Placidido, pensionado, had a sister but he lived with his wife. Later on, he died. He made a notarial will in English, consisting of two pages. (Ma'am reading the disposition, everything given to wife) Josephina filed a petition for the probate of the will. Leticia, the sister opposed. (Ma'am read the grounds) According to her, the circumstances surrounding the execution of the will are indicative of fraud particularly, the wife and sole beneficiary connived with the notary public and witnesses to



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA How about if the dates appearing in the will had different dates? The varying dates, the SC said, it does not hold water because the law does not even require that the notarial be executed and acknowledged on the same occasion. The will must be subscribed by the testator and the three witnesses who must also attest in the presence of each other. They must also attest before a notary public. But the variance in the dates of the will as to its supposed execution and attestation was satisfactorily explained by the notary public and instrumental witnesses. Petitioner also failed to prove conspiracy. There was no showing that witnesses of the instrument stood to receive any benefit from the allowance of the will. The testimonies of the three subscribing witnesses and the notary public are credible evidence of its execution. HOW ABOUT REVOCATION AND DISALLOWANCE? HOW DO WE DISTINGUISH THEM?

First, revocation is the voluntary act of the testator. Disallowance is by means of a judicial decree. Second, revocation may be with or without cause. Disallowance has to be with cause, based on those provided for my law. Revocation may be partial or total. Disallowance is generally total except when there is fraud, undue influence which affect only part of the will. Revocation is done during the lifetime of the testator. Disallowance is usually invoked during the death of the testator. But in both cases, the affected will cannot be given effect. SECTION 2. - Institution of Heir

he can be liable but only up to the value of his inheritance. Who can be instituted as heirs? Persons, walay labot ang pets. Natural and juridical persons. If it is a corporation, it depends upon its charter. Even the soul can be instituted as heir. The poor in general, they can be instituted. For natural persons, comply with articles 40 and 41 of the civil code. Art. 40. Birth determines personality; personality; but the conceived conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a) Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother's womb. However, if the fetus had an intrauterine life of less than seven months, it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. (30a)

He should attain juridical or civil personality which is determined by birth. Even if there is still a fetus in the womb and you are given inheritance, you can receive inheritance if you are born. But if the fetus had an intra-uterine life of less than 7 months, dapat mabuhi sya for at least 24 hours. If not, there is no succession from the testator to the fetus. The institution does not become effective. It will go the legal heirs of the testator. But if he lives for 24 hours and dies on the 30th hour, he inherits. It goes to the heirs of the fetus. He acquires the rights to the inheritance but only limited to the disposable portion. The instituted heir cannot impair the legitimes of the compulsory heirs. When we say instituted heirs, they are the ones designated by the testator in the will as distinguished from compulsory heirs who are given legitimes under the law, like legitimate children and descendants, legitimate parents and ascendants, surviving spouse and illegitimate children.






































The will itself must be extrinsically valid. The w ill has to comply with the formalities, whether it is a notarial will or a holographic will.

If he has compulsory heirs, he can dispose the portion pertaining to the free portion. But even as to the free portion, he can only dispose to qualified persons.

2)

Will must be intrinsically valid. There must not be any impairment of the legitime. If it does, the institution can be disallowed in total or it can be reduced.

Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known.

Heir must also be certain or ascertainable. I hereby institute some of pretty students as heirs. (Some are claiming pero wala juy gwapa sa ilaha :P) There should be no preterition. In preterition, the institution of heirs is annulled. 3)

Institution must be effective. Instituted heir should not predecease the testator or should not be found incapacitated to inherit from the testator, or should not repudiate the inheritance. Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal

Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772)

Ideally, the institution must mention the first name and surname of the heir. For person having the same first name and surname then, he should designate by any description. To my most beautiful daughter. For as long as it can be identified. Warning Punchline: If only daughter, maidentify jud sya unless kung naa pa syay lain na beautiful daughter among his sons. Nickname, pwede gihapon. If there is a doubt, two claims to be the beautiful daughter. After using all the rules in the interpretation of wills, it cannot



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA By SGM Disposition in favor of an unknown person. What is an unknown person? One who cannot be identified? To my student. To my friend. If it is undeniable, it will then be valid. To my student who will get the highest score in the final exam. As of now, it not identifiable but it will be identified later on. Class or group. My cousins. My neighbor if tag-bukid ka and isa lang imong silingan :)) Also in 959, disposition can be given to relatives. It says nearest in degree. The poor under 1030. There is a criteria to know who are these persons composing the class who is poor in the will. How do we identify? Not necessarily during the lifetime but for as long as the person can be identified. According to authorities, the identification may happen before or after the death of the testator, as long as the heir instituted who is later on identified is living at the time of death of the testator. If he died ahead, he cannot inherit because he never became an heir. Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)

Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a)

Here, the testator instituted his brothers and sisters in his will and he did not mention what are the respective shares of his brothers and sisters. These brothers and sisters, some are half blood, some full blood. I hope you already know what we mean by full blood and half blood. Full blood meaning you have the same father and mother. Half blood meaning you either have, same mother but different father or the other way around.

What if this is the situation? I hereby institute, A, B, C, and D as my sole heirs. Some of them are half blood brothers and sisters, A and B. C and D are full blood.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA It means they are instituted simultaneously, not one after the other but at the same time.

So who will receive? Legal heirs (If there is no substitute.. will discuss later)

I hereby institute X and his children as my sole heirs. The children of X are Y and Z.

How about an illegal cause?

So X, Y, Z will inherit at the same time. Unless, there is an express provision to the contrary. Article 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a)

The institution is made, and there is a false cause stated in the institution. For example, because A saved my life, I hereby institute A to ½ of my estate. but it turns out that A did not save the life of the testator. Can A receive the inheritance?

Can the institution be given effect if there is a mention of an illegal cause? The rule here is: if there is a relationship between the testator and the heir, such that even if the illegal cause did not exist, he would still give to the instituted heir, by reason of his generosity or liberality, then the institution can be given effect. But if the only reason for the institution is the illegal cause, we have the law on capacity, a prohibition for a testator and an heir, the testator cannot give something or any testamentary disposition to a person in consideration of a crime. Ex. Crime is illegal

YES. It is just a false cause. It is not a condition for him to inherit.

Unlike when, if A will save my life, I will institute A. in that case, saving the life of the testator is a condition. It has to happen first, or proven first, before the institution will be

That cannot be given effect, the heir is also disqualified to inherit from the testator. Take note: a false cause was discuss in revocation of wills.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA 000

To A 1/4, to B 1/8.

Does it cover the entire estate? NO, naa gihapon sobra. The remainder shall go to the legal heirs. Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n)

Here, the institution is also in aliquot portions. But if you add all those portions, they do not cover the entire estate. but the intention of the testator is to give everything to these instituted heirs. How do we distribute? Each part shall be increased proportionally. Problem 1: Easy level

C 2/ 3

16 / 24

23 /

16

800,00 0

24 x 1,200, 000

000 x 50,000 800,00 0 1,150, 000 x 50,000

1,150, 000

34, 782.6 1

834,782 .61

50,00 0

1,200,00 0

24 1,200, 000 1,150, 000 50,000 **



Ex. I hereby institute A B and C, with the ratio of 1/4 each and they shall be the sole heirs to the entire estate. the estate is 1.2B.

Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA 00 1,200,0 00

But if it is worded as: I heredy exclude A. or I hereby disinherit A. then that is not pretirition because you did not omit A. in fact you mentioned A and you said that you will exclude A. that will be governed by the law on disinheritance.

50,000

What kind of omission? To what extent?

(excess )

Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.

If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a) Very important provision, a favorite bar question. question. Concept of preterition – omission of one, some, or all of the

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He should be omitted entirely in the will. He is not given any inheritance, legacy or devise. Nothing at all was left to him at will. Example: I have several children, I have my children as A B C D E F and G. in the will he distributed his estate but he did not give anything to G. although G’s name was mentioned as one of the children. Is there preterition? Can you say wala because G was not forgotten? He was mentioned in the will. NO. G is preterited. When you say omitted, it is not enough that your name is mentioned in the will. Meaning you should not have received anything at all in the will. Either any donation during the lifetime or by legacy in the will or by devise or inheritance. Wala jud ka ndawat.

Nothing is left that can be distributed by intestacy.






































Assuming, wala jud naghatag ug any legacy, devise, etc. wala na pud nabilin by legal succession, so you can say na nay preterition. But during the lifetime of the testator, the omitted heir had already received a donation. In that case, no preterition. Why? The donation is considered as advance to the legitime of the omitted heir. What if ang gidonate sa iyaha is way below sa iyang legitime? Lugi sya. Then the heir is only entitled to a completion of legitime. Note ha, dili lang donation, any disposition nga pwede i-collate sa iyang legitime later on. (will discuss on

If he had an intrauterine life o f less than 7mos and he died within 24 hours, he shall not be considered preterited because he did not attain civil personality. But if he had an intrauterine life of more than 7mos as long as he was born alive, he shall have acquired civil personality. If there is a will and he was not mentioned, there is preterition and the institution of heirs is annulled.

p ersonality; but the Article 40. Birth determines personality; conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article. (29a)



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA How do we distribute the estate? by intestacy. We divide the estate equally among all the children, K L and M. What if the testator instituted K and L as his sole heir to entire estate of 9M and also leaving a legacy to M of 1,000. Is there preterition? Wala because M is not omitted, in fact he was given 1,000. Wala jud nalimtan ni testator. Tama tama paghuman basa sa will, pangtaxi niya pauli sa ilang balay. (lol) Consequence of this:  

no annulment of institution of heirs. M is entitled to completion of his legitime. Under the law, legitimate children are entitled to 1/2, so 1/2 of 9M is 4.5M and the other 4.5M is also the free

HEIR

LEGITIME

K L M

1.5M 1.5M 500,000

1M

FREE PORTION 2,250,000 2,250,000

What if in the will, I hereby institute K and L as my heirs ? Wala niya gimention si M. is M preterited? NO, because he did not mention that the entire 9M estate shall be solely for K and L. he just mentioned that he is instituting K and L as his heirs. Principle in institution: limited to the free portion .



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA 

 

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9M ang estate, estate, 1/2 of that is 4.5M as legitime, legitime, 4.5M ang free portion. Can the 2M be covered by the free portion? YES. But because there is preterition, the institution of heirs is annulled. but the legacy is not an institution of heirs. We distinguished before, heirs from legatees and devises. So walay labot ang legacy sa annulment kay dili man siya institution of heirs. That’s why it will stand as long as dili inofficious. HEI LEGITIM FREE TOTAL R E PORTION K 1.5M 833,333. 2,333,333. 33 33 L 1.5M 833,333. 2,333,333. 33 33 M Preterite 1.5M 833,333. 2,333,333.

This just discusses the distinctions between preterition in Art. 1104 and preterition under 854. Actually in the civil code, there are 3 kinds of preterition: 1. Art. 854 2. Art. 1104 – in the partition 3. Preterition in objects of the partition They have different consequences. Here, there was an extrajudicial partition executed by the heirs. But one compulsory heir was not included in the partition. He claimed that there is pretertion. But the SC said that preterition has been defined as the total omission of a compulsory heir from the inheritance. In consists in the silence of the testator with regard to the compulsory heir omitting him either by not mentioning him at all or by not giving him anything in the



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Kung kulang lang gihapon, tapos naa pa devisees and legatees, of course wala na tay makuha kay gihurot na nato noh! Didto lang ta kutob. We will not reduce the legitimes of the other compulsory heirs. Didto lang jud ta manguha sa free portion. Kung wala na free portion, meaning all the legitimes had been satisfied. Mao na na sya ang procedure in completing the share of completing the legitime of the compulsory heir.

GR: A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs XP: except in cases expressly provided for in this Code . This applies to the right of representation. So even if an heir dies ahead of the testator or even if he becomes incapacitated to succeed, he can still be represented. His rights are transferred to his own heirs. In effect, the rights of K will be transmitted to A and B. The 1.5M of K will go to A and B. Tungaan na nila. For example, they all predecease the testator. All will go to their heirs. If K L and M become incapacitated, the same thing. 

This is the procedure: 1. 2. 3.

Take from the portions of the estate not disposed of. Meaning not covered by any legacy or devise. Reduce sa mga pwede pa ireduce In any case, dili jud pwede bawasan ang share sa other compulsory heirs.

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WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA (1) Simple or common; 2 KINDS OF SUBSTITUTION

1. DIRECT SUBSTITUTION – ART 857: there is an heir originally instituted and in default of that heir another one takes his place. Only will enjoy the property. 2. INDIRECT SUBSTITUTION – there is a first heir instituted and then after the first heir, there is another heir, who will also enjoy the property. It is contemplated that both heirs would enjoy the property but not at the same time. One after the other. It should also be included in the definition of substitution. SUBSTITUTION – SUBSTITUTION – the appointment of another heir so that he

(2) Brief or compendious; (3) Reciprocal; or (4) Fideicommissary. (n) The CLASSIFICATIONS of Direct Substitution: Article 859. 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.





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA RECIPROCAL SUBSTITUTION – each heir is to be the substitute of the other. For example, we have two heirs, A and B are instituted heirs, in case of default of A – B will be the substitute; in case of default of B – A will be the substitute. So walay problema ana na situation.

si B. Pero kung B is already a lawyer and A is a law student and the institution of A is subject to the condition that A will first pass the bar, in his default B is the substitute. Now if A died ahead of the testator, B will now substitute A. But should B be subject to the condition to pass the bar first? NO because




































There must be a SECOND HEIR – fideicommissary or fideicomisario or beneficiary or cestui que trust

The second heir is the one who is second to enjoy the property but there is no obligation imposed upon the second heir

(1) Fideicommissary substitutions which are not made in an express manner, either by giving them this name, or imposing upon the fiduciary the absolute obligation to deliver the property to a second heir;



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Again as we said, it is only valid up to 20 years. years? Valid? Yes, valid.

If for 15

Assuming after 3 years y ears only after getting the property A died, he is now survived by his child B Is B bound by the same

Article 869. A provision whereby the testator leaves to a person the whole or part of the inheritance, and to another the usufruct, shall be valid. If he gives the usufruct to various persons, not simultaneously, but successively, the provisions of article 863 shall apply. (787a)



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA When we say condition we have the element of futurity and uncertainty. Futurity because it will happen in the future even if we speak of a past event which is something of the past but actually we are referring to a future knowledge of a past event. Uncertainty because it may or may not happen.

institution or the inheritance must be subordinate to that condition. Without that clear intention to subordinate the institution or the inheritance to the fulfillment of that condition, it would not be considered as a condition. That statement can either just be an advice or a description which even if not



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA conditional. In order to make a testamentary provision conditional, such condition must fairly appear from the language used in the will. Article 873. Impossible conditions and those contrary to law

Impossible conditions and those contrary to law or good morals shall be considered as not imposed and shall not prejudice the heir or legatee in any manner whatsoever, even should the testator otherwise provide.























































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Same rules which we discussed before. As to accretion. SECTION Capacity to Succeed by Will or by Intestacy

The provisions relating to incapacity by will are equally applicable to intestate succession. (744, 914) GR: Capacity, as long as you have not been incapacitated by law. you can succeed. 2nd par: the rules apply as well to testamentary and legal succession Capacity to succeed: capacity of the heir to inherit from the decedent. Article 1025. 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.

A child already conceived at the t he time ti me of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (n) We are talking here of a natural person. Who can succeed?



Natural persons Juridical persons Ex. Corporations, depends upon the charter

For a natural person to qualify to inherit: 

cultural,

educational,

or

charitable

2

Article 1024. Persons not incapacitated by law may succeed by will or ab intestato.



religious, scientific, purposes.

He must attain civil personality. ( Go back to Art. 40 and 41 of the NCC)

Article 1026. A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious, scientific, cultural, educational, or charitable purposes.

All other corporations or entities may succeed under a

unless there is a provision to the contrary in their charter or the laws of their creation, and always subject to the same.

But in legal succession, we only have the state. Now, we go to incapacity. We actually have 2 types of incapacity. 1. Absolute : they cannot inherit from any person and they cannot inherit any property under any circumstance 2. Relative: they can only inherit from certain persons or certain properties under certain circumstances Who are absolutely incapacitated? 1. Abortive infants 2. Juridical persons under their charter are disqualified to inherit. Relative incapacity, there are 3 kinds: (a) By reason of possible due influence (b) By reason of public policy or morality (c) By reason of unworthiness Article 1027. The succeeding:

following

are

incapable

of

(1) 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; (2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) 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



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA spouse, parents, or children;

We already discussed this in witnesses before diba?!

(5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;

#5 health officer…

(6) Individuals, associations and corporations not permitted by law to inherit. (745, 752, 753, 754a)

What if nagpacheck up lang ka sa doctor? After the check up gitagaan nimo sya ug legacy and then namatay. Is the doctor disqualified?

Incapable to succeed by reason of possible undue influence.

Physician, for example, sya jud ang nag-alaga during the last illness, he is disqualified.

The law says, took care of the testator, this means a continuing care not an isolated one. Druggist dili siguro na mga pusher noh?

Note that the reason why they are disqualified is because of their situation or their relationship to the decedent. The law says, they are incapable to succeed, the law here provides to a conclusive presumption. You cannot present evidence to the contrary. Again, even if we say that this applies to both, actually it is only applicable in testamentary succession. Ang order sa panghitabo: naay illness si testator then he confess, then he made a testamentary disposition in favor of the priest. Thus, the testamentary disposition must come after the confession. Last illness, one where there is a great possibility of death.

Example, naay cancer si testator, he confessed, then gave property to the priest. 20 years after namatay si testator. Disqualified ba si priest? NO, here there is sufficient time to change his will if there has been undue influence. Not applicable. That is with respect to # 1 and 2 Now, #3



Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions. (n) Cf: Article 739. The following donations shall be void:

(1) Those made between persons who were guilty of adultery or concubinage at the time of the donation; (2) Those made between persons found guilty of the same criminal offense, in consideration thereof; (3) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. In the case referred to in No. 1, the action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence in the same action. (n)

The will here was made during the existence of guardianship. When is the guardianship terminated? When the final accounts have been approved by the court.

So if the testator gave to his mistress a house, that disposition cannot be given effect because she is disqualified to receive the inheritance.

Samtang wala pa na-approve sa court ang final accounting, any disposition in favor of the guardian is invalid, the guardian is disqualified.

Note: applies only to testamentary succession.

Note, any provision may by the ward, if the guardian is the ascendant or descendant or brother or sister or spouse, of the ward, valid sya.

Incapacity by reason of public policy or morality .



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA and pious works, and the other half to the State, for the purposes mentioned in article 1013. (747a) The testator gives part or wholly of his property for prayers and pious works for the benefit of his soul. So how the disposition shall be made? If it is in general terms and without specifying it application, the law says ½ to the church or denomination to which the testator may belong and the other ½ to the State, for the purposes mentioned in ART 1013 as already discussed. Article 1030. Testamentary provisions in favor of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise.

The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favor of the poor of a definite locality. (749a) We have an institution in favor of the poor - if that is the tenor of the will, the poor in general without designation of particular persons or of any community. Who are the poor mentioned? Who are the recipients of the property? The law says shall be limited to the poor living in the domicile of the testator at the time of his death unless otherwise expressly stated by the testator. Who shall designate to who are to be considered as poor? It shall be made by the person appointed by the testator for the purpose. In default, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all these cases, the approval of the Court of First Instance shall be necessary. Article 1031. A testamentary provision in favor of a disqualified person, even though made under the guise of an

contract like deed of sale and in fact it is really a donation or testamentary disposition. Still void. Article 1032. The following are incapable of succeeding by reason of unworthiness:

(1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) 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; (4) 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; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent. (756, 673, 674a) DISQUALIFICATION BY REASON OF UNWORTHINESS Take note: ART 1031 will not apply to the disqualifications mentioned in ART 1032 because in 1032 the testator may actually (will?) the disqualification. FROM 2013 tsn : Article 1031, cannot apply to Art. 1032. The latter would deal on the incapacity by reason of unworthiness.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA 1 – Abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue.

Condonation can erase the effect of disqualification or incapacity. 2 KINDS OF CONDONATION

By analogy this would also apply to sons not only to daughters. 2 – Same noh? CONVICTION of an attempt against the life of the testator, his or her spouse, descendants or ascendants. Final judgment, all stages of execution and principals and accomplices. 3 – FALSE ACCUSATIONS. Just remember what the forms by which are the accusation will (take?). The accusation must be groundless. Remember also that the grounds mentioned in ART 1032 will apply both to testamentary and legal succession. succession. 4 – Any heir of full age (21yo), knowledge of the violent death of the testator (intentional crime/s), and should fail to report it to an officer of the law within a month, unless the authorities have already taken action But remember this article has no application in our jurisdiction because it says “this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation” 5 – Any person convicted of adultery or concubinage with the spouse of the testator. So any person which means it may be the child of the testator, the ascendant of the testator or even the friend of the testator. Any person FOUND GUILTY of adultery or concubinage with the spouse of the testator. The person is disqualified even without the disinheritance. Take note that when it comes to the guilty spouse qualified lang gihapon siya unless there is disinheritance or there is decree of legal separation. 6 – Fraud, violence, intimidation or undue influence should cause the testator to make a will or to change one already made. 7 –Fraud, violence, intimidation or undue influence prevents another from making a will or from revoking one already made or who supplants, conceals or alters the test ator’s will. 8 – Any person who falsifies or forges a supposed will of the decedent. So these persons are all disqualified to inherit.

1 – IMPLIED: There is already a ground for disqualification and the heir is already disqualified, the testator despite knowing of that act he instituted the heir in his will. Upon the death of the testator, the heir can inherit because by still instituting him as heir in the will despite knowing there was already a ground for disqualification. The testator already condoned the act. That is if there was already an act committed and subsequently there is a will instituting the heir. 2 – EXPRESS: There is already a will and in the will the testator instituted A as heir and then A attempted against the life of the testator and he was found guilty. Upon the death of the testator in that case, can A inherit? NO because by the subsequent act of unworthiness he becomes incapacitated to inherit. If the testator really wants to institute A as heir? He should condone the act of A in WRITING . After that A is now restored to capacity. CONDONATION IS A UNILATERAL ACT, IT IS DIFFERENT WITH RECONCILIATION WHEREIN THERE IS A MUTUAL RESTORATION OF THE RELATIONSHIP BETWEEN THE OFFENDER AND THE O FFENDED PARTY.

Is reconciliation sufficient or do we need a condonation in writing by the testator? TAKE NOTE: that if the ground for unworthiness is also made as ground for disinheritance, we follow the RULES ON DISINHERITANCE. So mere reconciliation is sufficient. So kung disinheritance lang to siya condonation in writing is also not sufficient because there is disinheritance and we follow the rule on disinheritance. There has to be reconciliation. Article 1034. In order to judge the capacity of the heir, devisee or legatee, his qualification at the time of the death of the decedent shall be the criterion.

In cases falling under Nos. 2, 3, or 5 of article 1032 , it shall be necessary to wait until final judgment is rendered, and in the case falling under No. 4, the expiration of the month allowed for the report . If the institution, devise or legacy should be conditional, the



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA death. Why at the time of death? Because it is during this period that transmission happens.

If it is conditional institution, you have to consider if the condition is fulfilled whether at the time also the heir is qualified. Article 1035. If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants, the latter shall acquire his right to the legitime.

The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. (761a)

obliged to return it together it its accessions. He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. (760a) He has to return not only the property itself but also the accessions, fruits, rents because in the first place is not entitled. Article 1039. Capacity to succeed is governed by the law of the nation of the decedent. (n)

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This is the same provision in disinheritance which we already discussed. A person who is incapacitated can be represented. By incapacity, predeceased, disinheritance – these persons can be represented. Repudiation you cannot be represented. A person who repudiates cannot be represented.

Usually ang question kay “What matters in succession are usually governed by the national law of the decedent?” ART 16 – Amount of successional rights, the order of succession, validity of the testamentary provision and the capacity to succeed so these should be governed by the national law of the decedent.

If the heir becomes incapacitated because he committed an act of unworthiness and then he is represented by his own heir. Although for example his heir is a minor, as a parent he should have administration and usufruct over the property of the child. But in this case, he shall not have administration or usufruct.

Article 1040. The action for a declaration of incapacity and for the recovery of the inheritance, devise or legacy shall be brought within five years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. (762a)

Article 1036. Alienations of hereditary property, and acts of administration performed by the excluded heir, before the judicial order of exclusion, are valid as to the third persons who acted in good faith; but the co-heirs shall have a right to recover damages from the disqualified heir. (n)

Even if the law says he is disqualified but there has to be a pronouncement finally made by the court that indeed he is disqualified. In the meantime, ginamit sa unworthy ang property and then iyahang gibaligya for example and then finally na adjudged siya as excluded. So GR – if in bad faith ang purchaser pwede pa mabalik pero kung innocent purchaser ang nakapalit so dili na siya to mabalik. But the excluded heir is deemed liable as to his co-heirs because in the first place excluded siya he should not have been entitled to the property. Article 1037. The unworthy heir who is excluded from the succession has a right to demand indemnity or any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. (n)

2 ACTIONS: 1 – Action for a declaration of incapacity 2 – Action for the recovery of the inheritance, devise or legacy What is the period? It shall be brought within 5 YEARS When? From the time the disqualified person took possession. Who may bring the action? Anyone who has an interest in the succession. Who are these persons? Heirs, legatees, devisees, creditors

There's another ground for disqualification under the Family Code.





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA from the innocent spouse by testate and intestate succession. (n)

For example, the other spouse has been absent for 4 yrs. The spouse can be declared presumptively dead in a summary proceeding and the other spouse can remarry. But if the spouse who remarries is in bad faith, the guilty spouse is disqualified to inherit from the innocent spouse by legal or intestate succession. Art. 44. If both spouses of the subsequent marriage acted in bad faith, said marriage shall be void ab initio and all donations by reason of marriage and testamentary dispositions made by one in favor of the other are revoked by operation of law. (n)

The acceptance shall benefit the creditors only to an extent sufficient to cover the amount of their credits. The excess, should there be any, shall in no case pertain to the renouncer, but shall be adjudicated to the persons to whom, in accordance with the rules established in this Code, it may belong. (1001)

For example, A has been instituted as a heir in the will of the testator. He has been given 10M but A does not want to accept. But A also has several debts amounting to 8M. He has no other properties. (He wants to be poor, kay kung poor ka mas duol ka sa heaven) Creditors can petition the court to accept the inheritance in behalf of the heir but they can only do so up to the extent of their credit. They cannot accept the 10M, only the 8M. They have to be prejudiced creditors, they have no other way to exact payment from the heir.

By operation of law, you need to withdraw the testamentary disposition. No need to revoke the will. No need to disinherit. They are all disqualified to inherit from each other by legal or intestate succession.

2) No person can be forced to accept the generosity of another.

What is acceptance and what is repudiation?

3) Acceptance and repudiations should be free and voluntary acts. The presence of vitiated consent will render them without effect.

Like in donation, succession also involves an act of liberality by the testator, especially when it is testamentary succession. But the instituted heirs, devisees and legatees are not compelled to accept. They may repudiate or renounce. When we say acceptance, it is the act by which a person called to succeed to the inheritance of the 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 the death of the said decedent. Repudiation, on the other hand, is the act by which a person called to succeed to said inheritance, manifests his unwillingness to succeed. What are the different nature of acceptance and

4) Both are subsequent to the death of the decedent but their effects retroact to the moment of death. Article 1042. The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent. (989)

If you accepted 5 days after death of the decedent, you are deemed to have accepted upon the death the decedent. If you repudiated your inheritance 30 days after death, an heir who repudiates is deemed to have never received the estate. If it is a real repudiation, you are not allowed to benefit from the inheritance. It retroacts to the moment of death, even



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA A tacit acceptance is one resulting 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. Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed. (999a) What are the modes of acceptance? It can be in a public or private document . Public means acknowledged before a notary public. Private, pwede ikaw lang nagsulat-sulat. That is express acceptance.

Tacit acceptance is the second mode of acceptance. It results from acts by which the intention to accept is necessarily implied or which one would not do except in his capacity as an heir. Even if you did not execute a document, whether public or private, but you acted in such a way that your act is inconsistent with repudiation. It cannot be interpreted in any other manner than by acceptance. Article 1050. 1050. An inheritance inheritance is deemed accepted: accepted: (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 gratuitously, for the benefit of one or more of his coheirs; (3) If he renounces it for a price in favor of all his coheirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance

He renounced gratuitously in favor of B only or B and C. That is still acceptance. If it was repudiation in its real sense, it should be gratuitously in favor of all, indiscriminate. (3) If he renounces it for a price in favor of all his coheirs indiscriminately; but if this renunciation should be gratuitous, and the co-heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted. (1000)

You cannot demand for a price if you repudiate. Because if you demand for a price, you are deriving benefit from the inheritance. One who repudiates cannot derive any benefit from the estate. If you renounce without receiving anything at all, that is real repudiation. What happens to your share which you have repudiated? As we discussed in accretion, you share will accrue to the others. The third kind of acceptance is in Art. 1057. Article 1057. Within thirty days after the court has issued an order for the distribution of the estate in accordance with the Rules of Court, the heirs, devisees and legatees shall signify to the court having jurisdiction whether they accept or repudiate the inheritance. If they do not do so within that time, they are deemed to have accepted the inheritance. (n)

This is presumed acceptance . How is repudiation done? There are only two modes of repudiation. (1) By public or authentic instrument. (2) By petition presented to the court having jurisdiction



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA property impaired the legitime of Victor, their natural brother and predecessor-in-interest. It was argued by the other side that when Victor filed a motion for the execution of CA, in effect, he repudiated his inheritance therefore, their action should fail. Was there implied repudiation? NO. Under NCC, there are only two modes of repudiation: (1) By public or authentic instrument; (2) By petition filed in the testate or intestate proceeding. There is no such thing as an implied or presumed repudiation. 7) There can be partial acceptance and partial repudiation. Article 954. The The legatee or devisee devisee cannot accept a part of the legacy or devise and repudiate the other, if the latter be onerous. Should he die before having accepted the legacy or devise, leaving several heirs, some of the latter may accept and the others may repudiate the share respectively belonging to them in the legacy or devise. (889a)

The heir can accept the onerous part and repudiate the gratuitous part. But he cannot accept the gratuitous part and repudiate the onerous part. 8) Repudiation of hereditary rights partakes the nature of donations. (Discussion on tax aspect) 9) Acceptance of inheritance does not make the heir personally liable for the debts and obligations of the decedent.

When you are an instituted heir, your acceptance carries with it the acceptance of the properties, rights and obligations. If you are an heir, you succeed to the universality or aliquot share. You cannot say specific properties. If you accept, that

Who may accept in behalf of minors? They cannot accept on their own because they do not have the capacity to act. They may be represented by their parents or guardians. How about in Repudiation? Also, their parents or guardians but with judicial approval . Those left to the poor. Who may accept? The persons designated by the testator or in default, we follow the order in 1030. Who may repudiate? The law does not mention. (Poor na gane, magrepudiate pa. HILAS) Article 1046. Public official establishments can neither accept nor repudiate an inheritance without the approval of the government. (994)

Acceptance and repudiation must be with the approval of o f the government. How about corporations, institutions and entities? Acceptance by their lawful representatives. How about repudiation? Also, lawful representatives but with court approval. Married woman. She can accept and repudiate on her own even without husband's consent. Deaf and mutes who can read and write. Acceptance and repudiation may be made personally or thru an agent. Deaf mutes who cannot read or write . Who may accept in their behalf? Guardians. Who may repudiate? Guardians but with court approval. Article 1053. 1053. If the heir should should die without having accepted or repudiated the inheritance his right shall be transmitted to his heirs. (1006)



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Should he repudiate it as an intestate heir, without knowledge of his being a testamentary heir, he may still accept it in the latter capacity. (1009) Dual capacity. He is an heir by will and he is an heir by legal succession. If you are instituted as heir in the will and you find it in your heart to repudiate the express will of the testator, then the law presumes with more reason that you do not want to accept by operation of law in the presumed will of the testator. Your repudiation as testamentary heir carries with it your repudiation as legal heir.

manner as an individual; but it shall not be appointed guardian of the person of a ward. (n)

Corporations and associations can be executors or administrators. But it should not be appointed guardian of a ward because guardianship may be over the person, the property of the word or both. If over the person of the ward, they are disqualified because it requires personal relationship. COLLATION

There are three concepts of collation . But if you repudiate as legal heir, without having knowledge of being a testamentary heir, you can still accept as testamentary heir.

First, Collation as a mathematical process. This is the imaginary addition or fictitious union of the property donated by the testator inter vivos upon his death.

EXECUTORS AND ADMINISTRATORS Article 1058. All matters relating to the appointment, appointment, powers and duties of executors and administrators and concerning the administration of estates of deceased persons shall be governed by the Rules of Court. (n)

Assuming the decedent left 18 0K. During his lif etime, he made a donation of 20K. He has debts amounting to 10K. How do we compute the net hereditary estate? 180K + 20K(donation) 10K (debts) = 190K. This is the basis for the computation of the legitime. All donations must be added up to the estate. (Pero dili guyuron pabalik ang properties)

This will be discussed under special proceedings. When you say executor, he is the person named in the will who is appointed to administer the properties of the decedent. Kung babae, executrix. When there is a will and there is no appointed administrator, one must be appointed. He is called the administrator the will annexed. When there is no will or the will is void, the person appointed is called the administrator/administratrix.

Second, Collation as an imputation. Donations inter vivos made to compulsory heirs are considered as advances to their legitimes.

For example, testator left two sons. 190 is the estate. Legitime is 95K. 95K is the free portion. Each son will receive 47,500. If the 20K donation was given to one of the sons, it will be considered as an advance to his legitime. 45K - 20K (donation) During the distribution of the estate, he will only be given 25K. Third, Actual reduction or abatement . It is the actual reduction or bringing back of that property donated by the testator during his lifetime from his estate, when the donations



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Angel Pascual died leaving his brothers and sisters. While in the process of settling the estate, it was brought up that one of the sisters revived a donation from the decedent during his lifetime. So the other brothers and sisters contended that such donation shall be considered as an advance. Is that contention correct? NO. Decedent was survived only by brothers and sisters. He did not have compulsory heirs. The purpose of collation is to preserve the legitime of compulsory heirs. Otherwise, he may be able to defeat and circumvent th e law of legitimes by donating his property during his lifetime. In this case, there is no legitime to be protected hence, there is no need for collation. Amelia gets the property donated to her and the properties left upon the death of the decedent will be divided equally among the siblings, including Amelia. October 16, 2014 (rj)

The case of Arellano v Pascual reiterates that there is only a need for collation if there are compulsory heirs. We should collate all donation inter vivos. What donations are subject of collation? What kinds of donation? In Vda. De Tupas v RTC of Negros Occidental, there was a donation made in favor of Tupas Foundation Inc., which is of course, not a compulsory heir of the testator. The issue here is whether the donation made to Tupas Foundation Inc. be subject to collation. It was contended that Tupas is not a compulsory heir, therefore we should not collate that donation made to Tupas. The SC ruled that all donations made by the decedent during his lifetime are subject to collation. Collation of gifts should include gifts not only those given to forced heirs but also those given in favor of strangers so that in completing the legitimes, the value of the property donated should be considered as part of the donor’s estate. It would be absurd to exclude from collation those made to strangers. And the testator may circumvent the law on legitimes by making donations to strangers.

(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.

When you say strangers for purposes of collation, it refers to those persons other than the compulsory heirs. For purposes of collation, we exclude a donation made to a spouse because during the subsistence of the marriage, the spouses are prohibited from donating to each other. It is considered void, therefore it is not subject to collation but that donated property shall still form part of the estate. As a general rule, donations made to compulsory heirs are charged to their legitimes. Donations to strangers are charged to the free portion. So if the free portion is not sufficient to cover the donation, then the donation is inofficious and it is not subject to the reduction or abatement. w ho succeeds with Article 1061. Every compulsory heir, who other compulsory heirs, must bring into the mass of the estate any property or right which he may have received from the decedent, during the lifetime of the latter, by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime of each heir, and in the account of the partition. Concept of Collation as a mathematical process. The law says, “by way of donation, or any other gratuitous title, in order that it may be computed in the determination of the legitime”. So take note not only donation inter vivos per se but also other gratuitious dispositions given by gratuitous title. There are certain grants which are given by the testator which may not necessarily form as a donation proper. Article 1062. Collation shall not take place among compulsory heirs if the donor should have so expressly provided, or if the donee should repudiate the inheritance,





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA We add back the 30, 000. How about the 20, 000? We still have to add it back. Still subject to collation as a mathematical process. Solution: 150, 000 30, 000 20, 000 200, 000  

100, 000 Legitime 100, 000 Free portion

A: A received a donation of 30, 000 during the testator’s lifetime and his legitime is supposed to be 50, 000. But he already received in advance the 30, 000. So he will just receive an additional 20, 000.

So the donation to A is collated subject to collation by way of imputation. It is imputed to his legitime. B: How about the donation made to B? Is it imputed to his legitime? NO. because testator said it is not subject to collation. Subject to collation to sya as a mathematical process but it is not imputed to the legitime of the compulsory heir to whom that donation is given. So the 20, 000 is charged to the Free portion.

as advance to the legitime of the compulsory heir. Or just say, it is not subject to collation. But again, mathematical process still added back. Meaning lang ana is it should not be considered as advance to the legitime. It should not be imputed. Article 1063. Property left by will is not deemed subject to collation, if the testator has not otherwise provided, but the legitime shall in any case remain unimpaired. For example, legacy or devise is given to a compulsory heir, general rule, it is not included in the computation unless the testator says it shall be part of the legitime. Article 1064. When the grandchildren, who survive with their uncles, aunts, or cousins, inherit from their grandparents in representation of their father or mother, they shall bring to collation all that their parents, if alive, would have been obliged to bring, even though such grandchildren have not inherited the property.

Assuming: Decedent has a son A. A has a son B. Example, during his lifetime the decedent made a donation to A worth 50k. He also made a donation to B worth 100k. If the decedent died, and he is survived by A and B, who are



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA child be brought to collation; but if they have been given by the parent to the spouses jointly, the child shall be obliged to bring to collation one-half of the thing donated. The donation is made to the spouse of the child. 1st example: X and Y are spouses. M and N are the parents of X. Ang parents ni X, n agdonate sila 1m kay Y. Namatay si N. Is X liable to bring to collation the value of the donation which N herself made to Y? NO. The value of the donation is 1m, if this is jointly made by M and N, ang sa estate ni N kato lang 500k. Pero kung si N lang ang nagdonate so ang entire 1m. 2nd example: M and N are spouses. Nagdonate sila to the spouses X and Y jointly and then namatay si N. Si X, ang ilang i.collate lang katong share nya sa 1m which is 500k, katong other half n nahatag sa iyang asawa, dili sya subject sa collation. fo r support, education, medical Article 1067. Expenses for attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation. Support includes which are indispensable to the sustenance of

The law also says that even if the parents opt that the expenses are subject to collation, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. So kung nakagasto na imung parents ug 10m sa imung pag.eskwela sa lawschool kay dugay kaayo ka nahuman. Kato bang entire 10m subject to collation? Dili pod. Kwentahon pud nato katong time na niundang ka kay pahuway sa ka. So ibawas to sya sa 10m. Article 1069. Any sums paid by a parent in satisfaction of the debts of his children, election expenses, fines, and similar expenses shall be brought to collation. So the concept of collation not only includes those by gratuitous title. Out of generosity or affection of your parents sila na lang nagbayad ug imung untang, npreso ka. Kani sila subject to collation. Article 1070. Wedding gifts by parents and ascendants consisting of jewelry, clothing, and outfit, shall not be reduced as inofficious except insofar as they may exceed one-tenth of the sum which is disposable by will.

General rule dili sya subject to collation unless ang value nila exceeds 10% of the free portion. Example: Estate – 2m Free portion – 1m




































What happens if there had been losses, improvements, and depreciation? It shall be for the account of the donee. Article 1072. In the collation of a donation made by both parents, one-half shall be brought to the inheritance of the father, and the other half, to that of the mother. That given by one alone shall be brought to collation in his or her inheritance.

2nd example under Article 1066. Article 1073. The donee's share of the estate shall be reduced by an amount equal to that already received by him; and his co-heirs shall receive an equivalent, as much as possible, in property of the same nature, class and quality.

Collation by way of imputation. If the donee is a compulsory heir, then his share shall be reduced by an amount equal to donation already received by him. For example, si A gitagaan ug house and lot by of donation during the lifetime of the testator. Upon the death of the testator, that house shall be considered as an advance to the legitime. So B and C for the sake of equality, dapat pud makadawat ug house and lot as much as possible kung naa pa.

quality as that subject to collation shall be made the standard of assessment. Assuming that the testator donated a land to A and the land is planted. From the time the donee accepts the donation, he will already generate income from the crops until the death of the testator. Does he have the obligation to return the fruits and income he received from the time the donation is made? NO. iyaha na to. But from the time the decedent die then didto na pud magpertain and rules: except from the day on which the succession is opened. Katong mga fruits from the time of death apil na to sya but depende sya kung inofficious ang donation or dili. Kung inofficious ibalik man nimu ang property ug income. Pero kung dli sya inofficious, walay obligation si donee to return. Article 1076. The co-heirs are bound to reimburse to the donee the necessary expenses which he has incurred for the preservation of the property donated to him, though they may not have augmented its value.

The donee who collates in kind an immovable which has been given to him must be reimbursed by his co-heirs for the improvements which have increased the value of the property, and which exist at the time the partition if effected. As to works made on the estate for the mere pleasure of the



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA SECTION 6 Partition and Distribution of the Estate SUBSECTION 1. Partition

This is actually the last part. In settlement proceedings, this will culminate in partition of the estate. Even in probate proceedings, after the will is allowed the property shall be distributed in accordance with the will. In intestate proceedings, the property shall be distributed in accordance with law. Before partition, what happens? Article 1078 provides.. Article 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased. (n)

If there are two or more heirs, before the partition, they are co – owners of the property. So if there is only one heir, then the sole heir gets the entire property. For them to distribute the property among themselves they should resort to partition. But they can also remain in co – ownership. There is no prohibition. Article 1079. Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided, or its

C B A

Right of Way

Highway How do we partition? (Methods of partition) If there is only one heir and no will, the proper way to do that is to execute an affidavit of self-adjudication. If there is a will, of course we have to partition in accordance with the will. If there are two or more heirs and they can agree and there are no debts, they can execute an extra judicial partition. You don’t have to go to court. Just execute the documents and signed by all. Then you specify what the respective share of the heirs are. Important requirement is that it must be published. If the heirs cannot agree among themselves and there is no will, then the other option is to execute an action for partition. You compel for partition. There is a civil action for partition. There is also settlement for intestate estate. That is resorted to especially if there are creditors. In the case of Heirs of Joaquin Teves v CA, the heirs executed an extra – judicial partition and the extra – judicial partition is governed by the Rules of Court (Rule 74, Section 1). It is a requirement that:



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA But if there are no creditors affected then the heirs can just partition among themselves. In fact the SC has ruled that even oral partition is valid. Article 1080. Should a person make partition of his estate by an act inter vivos, or by will, such partition shall be respected, insofar as it does not prejudice the legitime of the compulsory heirs. A parent who, in the interest of his or her family, desires to keep any agricultural, industrial, or manufacturing enterprise intact, may avail himself of the right granted him in this article, by ordering that the legitime of the other children to whom the property is not assigned, be paid in cash.

Partition can also be done by the testator even during his lifetime. How? 1. By means of a will – you must comply with the formalities of a will. 2. By an act inter vivos – it does not have to follow the formalities of a will. In the case of JLT Agro incorporated vs. Balansag, the decedent was involved in an action for damages case. Later on there was a compromise agreement where a provision provides that a certain property was allocated for his heirs in the second marriage. Subsequently, Don Julian entered into a deed of assignment. With those documents in the deed of assignment, the very same lot to be allocated to his heirs of the second marriage, he sold that lot to JLT agro. Heirs of the second marriage questioned alleging that Don Julian already

(3) That the promissor has, with respect to the object, an expectancy of a right which is purely hereditary in nature. A contract upon a future inheritance is an exception to the rule that you can enter into a contract regarding future properties. Exception to the exception is partition inter vivos. Even if we are talking of future inheritance the testator can partition that during his lifetime. When Don Julian sold the property to JLT Agro, that means he revoked the partition inter vivos. He was well w ithin his right to revoked the partition inter vivos because it is essentially revocable. The second issue is that by executing the deed of assignment they were in effect preterited. Are they preterited? The Supreme Court said NO because in order to have preterition, there has to be a will. Here there was no will. What he executed was a compromise agreement and deed of assignment. And also there are other properties left by the decedent. Article 1081. A person may, by an act inter vivos or mortis causa, intrust the mere power to make the partition after his death to any person who is not one of the co-heirs.

The provisions of this and of the preceding article shall be observed even should there be among the co-heirs a minor or





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA taxation purposes their respective share are implications that the heirs agree to divide the estate among themselves. Question: is it required that the partition has to be in writing to be enforceable? NO. it is not covered by the Statute of Frauds. (Pada Kilario v CA). Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; -- that requirement is only for convenience, not for validity or enforceability. Partition among the heirs is not a conveyance of the property; it is just a division, allocation, confirmation or ratification of title or right that an heir is renouncing in favor of another who accepts and receives the inheritance.

years because this is actually and prohibition of the testator to partition the property and that indivision can only last upto 20 years. And since the 20 years has already lapse, the other heirs has already their right to demand for a partition of the property. In Santos v Santos, October 12, 2000, it was alleged by Santos that he already acquired the properties of his co –heirs by prescription. Can a co – owner acquire the property of the other co – owners by acquisitive prescription? The Supreme Court said, general rule NO because if you are a co – owner you are holding the property in behalf or in trust of the others. But there can be a situation where a co –heir can acquire by acquisitive prescription the property of the others. The requisites are: 1. Co –owner repudiates the co – ownership.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA If the thing is indivisible example a car, how can you divide the car? You can sell it in a public auction and divide the proceeds among yourselves. Article 1087. In the partition the co-heirs shall r eimburse one another for the income and fruits which each one of them may have received from any property of the estate, for any useful and necessary expenses made upon such property, and for any damage thereto through malice or neglect.

For example, before partition certain heirs have already occupied the property and they earned income, or expenses for the preservation – there is mutual reimbursement here. In partition we do not only divide the property, we also account for the fruits and the income which shall accrue from the time of death.

co-heirs. Then from notification in writing A and B have 30days within which to exercise the right of legal redemption. Kung dili nila ma.exercise, then maglapse na ang ilahang right of redemption.

Cabales v CA Aug 31, 2007 October 22, 2014 – RJ and SID

Has the period of legal redemption already lapse? The prescriptive period of 30days has not yet commence because no notice in writing was given to them. Would actual knowledge or verbal notification suffice? Written notice is indispensable and actual knowledge of the sale



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA General Rule: There has to be a written notice of sale; it cannot be replaced by actual knowledge or verbal notification.

is a reciprocal warranty, so ipuno kay D and nawala sa iyaha to the extent na silang upat pareha gihapon na makuha na share.

Purpose: to remove any uncertainty insofar as to the existence, the terms of the sale and to comply with the provision of Article 1088.

Article 1093. The reciprocal obligation of warranty referred to in the preceding article shall be proportionate to the respective hereditary shares of the co-heirs, but if any one of them should be insolvent, the other co-heirs shall be liable for his part in the same proportion, deducting the part corresponding to the one who should be indemnified. Those who pay for the insolvent heir shall have a right of action against him for reimbursement, should his financial condition improve.

In Alonzo v IAC, the right of legal redemption was invoked more than 13 years. It would be tantamount to abandoning the right of legal redemption. Laches or estoppel was already applied in this case. In Cabales v CA , the right of legal redemption has already lapsed. We count the 30day period from 1993 after Nelson sought the barangay conciliation process to redeem his property. So he delayed, then he filed a complaint for legal redemption in 1995. So in this case the 30day period has

What if one of the heirs is insolvent? Wala na liability and insolvent? In the meantime, his share shall be shouldered by the others. but if his financial condition improves, he is the one obliged to reimburse.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Article 1096. The obligation of warranty among co-heirs shall cease in the following cases: (1) When the testator himself has made the partition, unless it appears, or it may be reasonably presumed, that his intention was otherwise, but the legitime shall always remain unimpaired; (2) When it has been so expressly stipulated in the agreement of partition, unless there has been bad faith; (3) When the eviction is due to a cause subsequent to the partition, or has been caused by the fault of the distributee of the property.

In these cases, there is no more obligation or warranty. If the testator himself made it, so wala tay mabuhat kay ana man gusto sa testator. Kung gitagaan kag bad debt ni testator, walay warranty, unless the legitime is impaired. In such a case, naa gihapon warranty. Even if the testator is the one

* note ha, the same thing, if there is lesion of at least ¼ it also subject to rescission 3.

Kung dili mo magkasinabot – judicial partition

Art. 1099. The partition made by the testator cannot be impugned on the ground of lesion, except when the l egitime of the compulsory heirs is thereby prejudiced, or when it appears or may reasonably be presumed, that the intention of the testator was otherwise. (1075)

Partition made by the testator GR: even if there is lesion, you cannot impugn the partition.



































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Here, you cannot maintain an action of rescission because the same presupposes mutual restitution. He should return so that a new partition can be made. How can it be made if it was alienated? Option: tagaan sa kulang sa iyang share, indemnified in cash. Art. 1103. The omission of one or more objects or securities of the inheritance shall not cause the rescission of the partition on the ground of lesion, but the partition shall be completed by the distribution of the objects or securities which have been omitted. (1079a)

the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand of the case for further proceedings to make the proper valuation of the Isarog property and ascertainment of the amount due petitioner Delia Viado.

Ok, so we do not disturb the extrajudicial partition already made. We just give to the excluded heirs what is rightfully his or hers. We have the other heirs who receive more than their share should contribute to the shares of those excluded. RELLIO v. SAN JOSE GR 166393 June 18 2009

Preterititon of objects of the partition

In this particular case, there was an extra judicial partition





































WILLS AND SUCCESSION LECTURES Atty. Leilanie Yang-yang-Espejo, CPA Status of the partition: it is void only with respect to such person. Case in point: AZNAR BROS. BROS. v CA

Succession Tsn 2014

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