Lecture
No. 10.
Part 2
WILLS & SUCCESSION
(For
Fourth Year Section-A and Property Second Year,
University of San Agustin
School of Law,
General Luna Street, Iloilo City,
School Year 2016-2017 Ist Semester)
Atty. EDUARDO T. REYES, III
CHAPTER
2
Testamentary Succession
Testamentary Succession
SECTION
1
Wills
Wills
SUBSECTION
1. Wills in General
Article
783. A will is an act
whereby a person is permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of this estate, to take effect
after his death. (667a)
Article
784. The making of a
will is a strictly personal act; it cannot be left in whole or in part to the
discretion of a third person, or accomplished through the instrumentality of an
agent or attorney. (670a)
Article
785. The duration or
efficacy of the designation of heirs, devisees or legatees, or the
determination of the portions which they are to take, when referred to by name,
cannot be left to the discretion of a third person. (670a)
Article
786. The testator may
entrust to a third person the distribution of specific property or sums of
money that he may leave in general to specified classes or causes, and also the
designation of the persons, institutions or establishments to which such
property or sums are to be given or applied. (671a)
Article
787. The testator may
not make a testamentary disposition in such manner that another person has to
determine whether or not it is to be operative. (n)
Article
788. If a testamentary
disposition admits of different interpretations, in case of doubt, that
interpretation by which the disposition is to be operative shall be preferred.
(n)
Comments: 1st
clause- latent; intrinsic / 2nd clause patent; extrinsic
Article
789. When there is an
imperfect description, or when no person or property exactly answers the
description, mistakes and omissions must be corrected, if the error appears
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 into consideration the circumstances under which it was made,
excluding such oral declarations. (n)
Article
790. The words of a
will are to be taken in their ordinary and grammatical sense, unless a clear
intention to use them in another sense can be gathered, and that other can be
ascertained.
Technical words in a will are to be taken in their
technical sense, unless the context clearly indicates a contrary intention, or
unless it satisfactorily appears that the will was drawn solely by the
testator, and that he was unacquainted with such technical sense. (675a)
Comment: “Esoteric”
Article
791. The words of a
will are to receive an interpretation which will give to every expression some
effect, rather than one which will render any of the expressions inoperative;
and of two modes of interpreting a will, that is to be preferred which will
prevent intestacy. (n)
Article
792. The invalidity of
one of several dispositions contained in a will does not result in the
invalidity of the other dispositions, unless it is to be presumed that the
testator would not have made such other dispositions if the first invalid
disposition had not been made. (n)
Article
793. Property acquired
after the making of a will shall only pass thereby, as if the testator had
possessed it at the time of making the will, should it expressly appear by the
will that such was his intention. (n)
Comment: “After-acquired
properties”
Article
794. Every devise or
legacy shall cover all the interest which the testator could device or bequeath
in the property disposed of, unless it clearly appears from the will that he
intended to convey a less interest. (n)
Article
795. The validity of a
will as to its form depends upon the observance of the law in force at the time
it is made. (n)
Comment: See related
articles 804-814, 816-817
SUBSECTION
2. Testamentary Capacity and Intent
Article
796. All persons who
are not expressly prohibited by law may make a will. (662)
Article
797. Persons of either
sex under eighteen years of age cannot make a will. (n)
Article
798. In order to make a
will it is essential that the testator be of sound mind at the time of its
execution. (n)
Article
799. To be of sound
mind, it is not necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken, unimpaired, or
unshattered by disease, injury or other cause.
It shall be sufficient if the testator was able at
the time of making the will to know the nature of the estate to be disposed of,
the proper objects of his bounty, and the character of the testamentary act.
(n)
Article
800. The law presumes
that every person is of sound mind, in the absence of proof to the contrary.
The burden of proof that the testator was not of
sound mind at the time of making his dispositions is on the person who opposes
the probate of the will; but if the testator, one month, or less, before making
his will was publicly known to be insane, the person who maintains the validity
of the will must prove that the testator made it during a lucid interval. (n)
Comment:
·
“Forgetfulness” Baltazar v. Laxa, G.R. No. 174489,
April 11, 2012
·
Testimonies of instrumental witnesses carry great
weight
Article
801. Supervening
incapacity does not invalidate an effective will, nor is the will of an
incapable validated by the supervening of capacity. (n)
Article
802. A married woman
may make a will without the consent of her husband, and without the authority
of the court. (n)
Article
803. A married woman may
dispose by will of all her separate property as well as her share of the
conjugal partnership or absolute community property. (n)
SUBSECTION
3. Forms of Wills
Article
804. Every will must be
in writing and executed in a language or dialect known to the testator. (n)
Article
805. Every will, other
than a holographic will, must be subscribed at the end thereof by the testator
himself or by the testator's name written by some other person in his presence,
and by his express direction, and attested and subscribed by three or more
credible witnesses in the presence of the testator and of one another.
The testator or the person requested by him to
write his name and the instrumental witnesses of the will, shall also sign, as
aforesaid, each and every page thereof, except the last, on the left margin,
and all the pages shall be numbered correlatively in letters placed on the
upper part of each page.
The attestation shall state the number of pages
used upon which the will is written, and the fact that the testator signed the
will and every page thereof, or caused some other person to write his name,
under his express direction, in the presence of the instrumental witnesses, and
that the latter witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another.
If the attestation clause is in a language not
known to the witnesses, it shall be interpreted to them. (n)
Comment: “Test of
available senses”. See Art. 809.
Article
806. Every will must be
acknowledged before a notary public by the testator and the witnesses. The
notary public shall not be required to retain a copy of the will, or file
another with the office of the Clerk of Court.(n)
Article
807. If the testator be
deaf, or a deaf-mute, he must personally read the will, if able to do so;
otherwise, he shall designate two persons to read it and communicate to him, in
some practicable manner, the contents thereof. (n)
Article
808. If the testator is
blind, the will shall be read to him twice; once, by one of the subscribing
witnesses, and again, by the notary public before whom the will is
acknowledged. (n)
Comment: Also applies to
poor, defective or “blurred” vision.
Article
809. In the absence of
bad faith, forgery, or fraud, or undue and improper pressure and influence,
defects and imperfections in the form of attestation or in the language used
therein shall not render the will invalid if it is proved that the will was in
fact executed and attested in substantial compliance with all the requirements of
article 805. (n)
Comment:
1.“The
total number of pages and whether all persons required to sign did so in the presence of one another
must SUBSTANTIALLY APPEAR in the attestation clause being the only check
against perjury[1]”.
2. If defect can be cured by mere examination
of the will itself, defect is not fatal
Article
810. A person may
execute a holographic will which must be entirely written, dated, and signed by
the hand of the testator himself. It is subject to no other form, and may be
made in or out of the Philippines, and need not be witnessed. (678, 688a)
Article
811. In the probate of
a holographic will, it shall be necessary that at least one witness who knows
the handwriting and signature of the testator explicitly declare that the will
and the signature are in the handwriting of the testator. If the will is contested,
at least three of such witnesses shall be required.
In the absence of any competent witness referred to
in the preceding paragraph, and if the court deem it necessary, expert
testimony may be resorted to. (619a)
Article
812. In holographic
wills, the dispositions of the testator written below his signature must be
dated and signed by him in order to make them valid as testamentary
dispositions. (n)
Article
813. When a number of
dispositions appearing in a holographic will are signed without being dated,
and the last disposition has a signature and a date, such date validates the
dispositions preceding it, whatever be the time of prior dispositions. (n)
Article
814. In case of any
insertion, cancellation, erasure or alteration in a holographic will, the testator
must authenticate the same by his full signature. (n)
Comment: “Full
signature” means “customary signature”.
Article
815. When a Filipino is
in a foreign country, he is authorized to make a will in any of the forms
established by the law of the country in which he may be. Such will may be
probated in the Philippines. (n)
Article
816. The will of an
alien who is abroad produces effect in the Philippines if made with the
formalities prescribed by the law of the place in which he resides, or
according to the formalities observed in his country, or in conformity with
those which this Code prescribes. (n)
Article
817. A will made in the
Philippines by a citizen or subject of another country, which is executed in
accordance with the law of the country of which he is a citizen or subject, and
which might be proved and allowed by the law of his own country, shall have the
same effect as if executed according to the laws of the Philippines. (n)
Article
818. Two or more
persons cannot make a will jointly, or in the same instrument, either for their
reciprocal benefit or for the benefit of a third person. (669)
Article
819. Wills, prohibited
by the preceding article, executed by Filipinos in a foreign country shall not
be valid in the Philippines, even though authorized by the laws of the country
where they may have been executed. (733a)
SUBSECTION
4. - Witnesses to Wills
Article
820. Any person of
sound mind and of the age of eighteen years or more, and not blind, deaf or
dumb, and able to read and write, may be a witness to the execution of a will
mentioned in article 805 of this Code. (n)
Comments: 1.Stricter
qualifications imposed on witnesses.
Article
821. The following are
disqualified from being witnesses to a will:
(1) Any person not domiciled in the Philippines;
(2) Those who have been convicted of
falsification of a document, perjury or false testimony. (n)
Article
822. If the witnesses
attesting the execution of a will are competent at the time of attesting, their
becoming subsequently incompetent shall not prevent the allowance of the will.
(n)
Article
823. If a person
attests the execution of a will, to whom or to whose spouse, or parent, or
child, a devise or legacy is given by such will, such devise or legacy shall,
so far only as concerns such person, or spouse, or parent, or child of such
person, or any one claiming under such person or spouse, or parent, or child,
be void, unless there are three other competent witnesses to such will.
However, such person so attesting shall be admitted as a witness as if such
devise or legacy had not been made or given. (n)
Comment:
1. Effects of non-observance of Article 823
a.Will
is valid but the disposition as to the witness is not valid.
b.
competency of the witness is not affected but only his entitlement to the
legacy or devise
c.
Article 823 is not a disqualification to be a witness but rather to inherit
d.
Disqualification is not limited to the devisee or legatee but extends to one
succeeding by will[2]
Article
824. A mere charge on
the estate of the testator for the payment of debts due at the time of the
testator's death does not prevent his creditors from being competent witnesses
to his will. (n)
SUBSECTION 5. Codicils and Incorporation by
Reference
Comments:
1. Formal Requirements Common to Both Wills:
a) The
forms and solemnities of wills shall be governed by the laws of the country
shall be governed by the laws of the country in which they are executed[3].
b) Must
be in writing. Every will executed in the Philippines mus be in
writing[4]. This rule
is mandatory.
2. Formal
Requirements in Notarial/ Attested Wills
a) It
must be subscribed at the end thereof: by the testator himself or by the
testator’s name written by some other person in his presence, and by his
express direction[5]
b) It
must be ATTESTED and SUBSCRIBED by at least three (3) credible witnesses in the
presence of the testator and of one another
c) The
testator or the person requested by him to write his name must also sign every
page, except the last, on the left margin in the presence of the witnesses
d) The
witnesses must sign every page, except the last, on the left margin in the
presence of the testator and of one another
e) All
pages must be numbered correlatively in letters on the upper part of each page
f) It
must contain an attestation clause which expressly states the following:
1.the number of pages
upon which the will is written
2. the fact that the
testator signed the will and every page thereof, or caused some other person to
write his name, under his express direction, in the presence of the
instrumental witnesses;
3. the fact that the
witnesses witnessed and signed the will and all the pages thereof in the
presence of the testator and of one another
g) It
must be acknowledged before a notary public by the testator and the witnesses
Article
825. A codicil is
supplement or addition to a will, made after the execution of a will and
annexed to be taken as a part thereof, by which disposition made in the
original will is explained, added to, or altered. (n)
Article
826. In order that a codicil
may be effective, it shall be executed as in the case of a will. (n)
Article
827. If a will,
executed as required by this Code, incorporates into itself by reference any
document or paper, such document or paper shall not be considered a part of the
will unless the following requisites are present:
(1) The document or paper referred to in the
will must be in existence at the time of the execution of the will;
(2) The will must clearly describe and
identify the same, stating among other things the number of pages thereof;
(3) It must be identified by clear and
satisfactory proof as the document or paper referred to therein; and
(4) It must be signed by the testator and the
witnesses on each and every page, except in case of voluminous books of account
or inventories. (n)
Comment: Incorporation
by reference.
E D I S- Existence,
description, identification, signature
SUBSECTION
6. Revocation of Wills and Testamentary Dispositions
Article
828. A will may be
revoked by the testator at any time before his death. Any waiver or restriction
of this right is void. (737a)
Comment: 1. Witnesses
also possible in holographic will; 2. Document is handwritten.
Article
829. A revocation done
outside the Philippines, by a person who does not have his domicile in this country,
is valid when it is done according to the law of the place where the will was
made, or according to the law of the place in which the testator had his
domicile at the time; and if the revocation takes place in this country, when
it is in accordance with the provisions of this Code. (n)
Article
830. No will shall be
revoked except in the following cases:
(1) By implication of law; or
(2) By some will, codicil, or other writing
executed as provided in case of wills; or
(3) 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. (n)
Comment: 1.There must be
actual burning, etc. plus intent to burn etc.
2. Articles 957- Testator sells or donates
legacy
3. Art. 63 [4] New Family Code- Grounds for
legal separation
4. Art. 1032 NCC- Unworthiness
5. Art. 936 – Credit gives as legacy
judicially demanded by testator
6. Art. 854- Preterition
Article
831. Subsequent wills
which do not revoke the previous ones in an express manner, annul only such
dispositions in the prior wills as are inconsistent with or contrary to those
contained in the later wills. (n)
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)
Article
833. A revocation of a
will based on a false cause or an illegal cause is null and void. (n)
Comment: 1. Doctrine of
Dependent Relative revocation.
2.See
Art. 850.
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)
SUBSECTION
7. Republication and Revival of Wills
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)
Comment: Two ways of
reviving a will. If valid, execution of a codicil is sufficient. If it was
VALID but revoked, it can be revived by mere codicil.
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)
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)
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.
Subject to the right of appeal, the allowance of
the will, either during the lifetime of the testator or after his death, shall
be conclusive as to its due execution. (n)
Article
839. The will shall be
disallowed in any of the following cases:
(1) If the formalities required by law have
not been complied with;
(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)
SECTION
2
Institution of Heir
Institution of Heir
Article
840. Institution of
heir is an act by virtue of which a testator designates in his will the person
or persons who are to succeed him in his property and transmissible rights and
obligations. (n)
Article
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 heirs. (764)
Article
842. One who has no
compulsory heirs may dispose by will of all his estate or any part of it in favor
of any person having capacity to succeed.
One who has compulsory heirs may dispose of his
estate provided he does not contravene the provisions of this Code with regard
to the legitime of said heirs. (763a)
Article
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.
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)
Article
844. An error in the
name, surname, or circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with certainty the person
instituted.
If among persons having the same names and
surnames, there is a similarity of circumstances in such a way that, even with
the use of other proof, the person instituted cannot be identified, none of
them shall be an heir. (773a)
Article
845. Every disposition
in favor of an unknown person shall be void, unless by some event or
circumstance his identity becomes certain. However, a disposition in favor of a
definite class or group of persons shall be valid. (750a)
Article
846. Heirs instituted
without designation of shares shall inherit in equal parts. (765)
Article
847. When the testator
institutes some heirs individually and others collectively as when he says,
"I designate as my heirs A and B, and the children of C," those
collectively designated shall be considered as individually instituted, unless
it clearly appears that the intention of the testator was otherwise. (769a)
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)
Article
849. When the testator
calls to the succession a person and his children they are all deemed to have
been instituted simultaneously and not successively. (771)
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)
Comment: As much as
possible, intestacy ought to be avoided.
Article
851. If the testator
has instituted only one heir, and the institution is limited to an aliquot part
of the inheritance, legal succession takes place with respect to the remainder
of the estate.
The same rule applies if the testator has
instituted several heirs, each being limited to an aliquot part, and all the
parts do not cover the whole inheritance. (n)
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)
Comment: Art. 851
constitutes as the general rule while Art. 852 the exception.
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 may be, each part shall be reduced proportionally. (n)
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)
Comment:
1. Preterition v. Ineffective Disinheritance (Article
918, NCC)
In Nuguid v. Nuguid[6],
it was held that “Preterition consists in the omission in the testaor’s
will of the forced heirs or anyone of them, either because they are not
mentioned therein, or, though mentioned, they are neither instituted as heirs
nor are expressly disinherited. Disinheritance, in turn, is a testamentary
disposition depriving any compulsory heir of his share in the legitime for a
cause authorized by law.
In preterition, the annulment of the institution of heir
is in toto, unless in the will there
are, in addition, testamentary dispositions in the form of devises or legacies.
With respect to devises and legacies, they shall remain valid insofar as they
are not inofficious. In ineffective disinheritance under Article 918 of the new
Civil Code, such disinheritance shall also “annul the institution of heirs”,
but only insofar as it may prejudice the person disinherited. Better stated
yet, in ineffective disinheritance the nullity is limited to that portion of
the estate of which the disinherited heirs have been illegally deprived.
Civilists like J.B.L. Reyes and Puno, and even Tolentino,
opine that the “omission of a forced heir in the will of a testator must be by
mistake, inadvertence or thru an oversight, for preterition to exist. If by
mistake or inadvertence three is true preterition and total intestacy results.
On the other hand, if the omission is intentional,
the effect would be a defective disinheritance covered by Article 918 of the
New Civil Code in which case the institution of heir is not wholly void but
only insofar as it prejudices the legitime of the person disinherited”.
Article
855. The share of a
child or descendant omitted in a will must first be taken from the part of the
estate not disposed of by the will, if any; if that is not sufficient, so much
as may be necessary must be taken proportionally from the shares of the other
compulsory heirs. (1080a)
Article
856. A voluntary heir
who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a
person incapacitated to succeed, and one who renounces the inheritance, shall
transmit no right to his own heirs except in cases expressly provided for in
this Code. (766a)
Comment: Despite
stinginess of words of 1st paragraph of Art. 856, a voluntary heir
who dies before the testator cannot be represented.
SECTION
3
Substitution of Heirs
Substitution of Heirs
Article
857. Substitution is
the appointment of another heir so that he may enter into the inheritance in
default of the heir originally instituted. (n)
Comment: 1. Art. 976,
977, A renouncer may represent but may not be represented.
2. There is NO ACCRETION with respect to
legitime.
3. Arts. 864, 872 & 904, NO substitution
in legitime.
Article
858. Substitution of
heirs may be:
(1) Simple or common;
(2) Brief or compendious;
(3) Reciprocal; or
(4) Fideicommissary. (n)
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.
A simple substitution, without a statement of the
cases to which it refers, shall comprise the three mentioned in the preceding
paragraph, unless the testator has otherwise provided. (774)
Article
860. Two or more
persons may be substituted for one; and one person for two or more heirs. (778)
Article
861. If heirs
instituted in unequal shares should be reciprocally substituted, the substitute
shall acquire the share of the heir who dies, renounces, or is incapacitated,
unless it clearly appears that the intention of the testator was otherwise. If
there are more than one substitute, they shall have the same share in the
substitution as in the institution. (779a)
Article
862. The substitute
shall be subject to the same charges and conditions imposed upon the instituted
heir, unless and testator has expressly provided the contrary, or the charges
or conditions are personally applicable only to the heir instituted. (780)
Article
863. A fideicommissary
substitution by virtue of which the fiduciary or first heir instituted is
entrusted with the obligation to preserve and to transmit to a second heir the
whole or part of the inheritance, shall be valid and shall take effect,
provided such substitution does not go beyond one degree from the heir
originally instituted, and provided further, that the fiduciary or first heir
and the second heir are living at the time of the death of the testator. (781a)
Comment: “one degree”
means “one generation” and is always counted from the 1st heir.
Article
864. A fideicommissary
substitution can never burden the legitime. (782a)
Article
865. Every
fideicommissary substitution must be expressly made in order that it may be
valid.
The fiduciary shall be obliged to deliver the
inheritance to the second heir, without other deductions than those which arise
from legitimate expenses, credits and improvements, save in the case where the
testator has provided otherwise. (783)
Article
866. The second heir
shall acquire a right to the succession from the time of the testator's death,
even though he should die before the fiduciary. The right of the second heir
shall pass to his heirs. (784)
Article
867. The following
shall not take effect:
(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;
(2) Provisions which contain a perpetual
prohibition to alienate, and even a temporary one, beyond the limit fixed in
article 863;
(3) Those which impose upon the heir the
charge of paying to various persons successively, beyond the limit prescribed
in article 863, a certain income or pension;
(4) Those which leave to a person the whole
or part of the hereditary property in order that he may apply or invest the
same according to secret instructions communicated to him by the testator.
(785a)
Article
868. The nullity of the
fideicommissary substitution does not prejudice the validity of the institution
of the heirs first designated; the fideicommissary clause shall simply be
considered as not written. (786)
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)
Article 870. The dispositions of the testator
declaring all or part of the estate inalienable for more than twenty years are
void. (n)
Comments:
1. INTERPLAY OF Inter-related Legal provisions; Summary
of Rules
a) NO
RIGHT OF REPRESENTATION WITH RESPECT TO FREE PORTION (Art. 856, par 1.)
b) NO
ACCRETION WITH RESPECT TO LEGITIME (Articles 886, 1015)
c) NO
SUBSTITUTION WITH RESPECT TO LEGITIME (Articles 864, 872 & 904)
d) IN TESTATE
SUCCESSION, REPRESENTATION COVERS ONLY THE LEGITIME. IN INTESTACY, IT COVERS
THE ENTIRE SHARE OF THE PERSON REPRESENTED (Arts. 856, 970, 972 & 1035)
2. SUBSTITUTION,
REPRESENTATION and ACCRETION, distinguished.
A. Testamentary
Succession
1) With respect
to LEGITIME
1.1.In case of
PREDECEASE, INCAPACITY or DISINHERITANCE
1.1.1 Right of Representation
1.1.2. Default thereof, co-heirs succeed in their own
right (Art. 1021, par. 2).
1.1.3. Secondary or other compulsory heirs
1.1.4. No substitution with respect to legitime (Art.
904)
2) With
respect to FREE PORTION
2.1. PREDECEASE,
INCAPACITY or RENUNCIATION
2.1.1. Art. 859, Substitution may take place if provided
for by testator
2.1.2. In the absence thereof, to co-heirs by accretion
2.1.3. If requisites for accretion are ABSENT, or
testator declared that no accretion
shall take place, free portion goes to other legal or intestate heirs
B. Intestate
Succession
1. PREDECEASE,
INCAPACITY
1.1. Right of
representation takes place
1.2. If no representation
takes place, then the co-heirs in their own right
1.3. in default of
co-heirs, vacant share goes to heirs in the next order of intestacy.
2. In case of
REPUDIATION
2.1. vacant portion goes
to co-heirs by accretion. In legal succession, the share of the person who
repudiates shall always accrue in favour of his co-heirs
2.2. In default thereof,
vacant share goes to heirs of next degree in their own right
2.3. heirs in the next
order of intestacy
SECTION
4
Conditional Testamentary Dispositions and Testamentary Dispositions With a Term
Conditional Testamentary Dispositions and Testamentary Dispositions With a Term
Article
871. The institution of
an heir may be made conditionally, or for a certain purpose or cause. (790a)
Article
872. The testator
cannot impose any charge, condition, or substitution whatsoever upon the
legitimes prescribed in this Code. Should he do so, the same shall be
considered as not imposed. (813a)
Article
873. Impossible
conditions and those contrary to law or good customs shall be considered as not
imposed and shall in no manner prejudice the heir, even if the testator should
otherwise provide. (792a)
Article
874. An absolute
condition not to contract a first or subsequent marriage shall be considered as
not written unless such condition has been imposed on the widow or widower by
the deceased spouse, or by the latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an
allowance or some personal prestation may be devised or bequeathed to any person
for the time during which he or she should remain unmarried or in widowhood.
(793a)
Article
875. Any disposition
made upon the condition that the heir shall make some provision in his will in
favor of the testator or of any other person shall be void. (794a)
Comments:
1. This is known as “disposition captatoria”. Is one which imposes as condition that the heir shall make
some provision in his will in favour of the testator or of any other person.
2.
Such DISPOSITION is void but shall not affect the
other provisions in the will.
Article
876. Any purely
potestative condition imposed upon an heir must be fulfilled by him as soon as
he learns of the testator's death.
This rule shall not apply when the condition,
already complied with, cannot be fulfilled again. (795a)
Comment: Compare with
Art. 1182 on Obligations & Contracts. Potestative Obligation which is
dependent purely on will of heir is a Void Obligation.
Article
877. If the condition
is casual or mixed, it shall be sufficient if it happen or be fulfilled at any
time before or after the death of the testator, unless he has provided
otherwise.
Should it have existed or should it have been
fulfilled at the time the will was executed and the testator was unaware
thereof, it shall be deemed as complied with.
If he had knowledge thereof, the condition shall be
considered fulfilled only when it is of such a nature that it can no longer
exist or be complied with again. (796)
Comment: “Casual
condition” means dependent upon chance and/ or will of a 3rd person.
Article
878. A disposition with
a suspensive term does not prevent the instituted heir from acquiring his
rights and transmitting them to his heirs even before the arrival of the term.
(799a)
Article
879. If the potestative
condition imposed upon the heir is negative, or consists in not doing or not
giving something, he shall comply by giving a security that he will not do or
give that which has been prohibited by the testator, and that in case of
contravention he will return whatever he may have received, together with its
fruits and interests. (800a)
Comment: “Caucion
Muciana”.
Article
880. If the heir be
instituted under a suspensive condition or term, the estate shall be placed
under administration until the condition is fulfilled, or until it becomes
certain that it cannot be fulfilled, or until the arrival of the term.
The same shall be done if the heir does not give
the security required in the preceding article. (801a)
Article
881. The appointment of
the administrator of the estate mentioned in the preceding article, as well as
the manner of the administration and the rights and obligations of the
administrator shall be governed by the Rules of Court. (804a)
Article
882. The statement of
the object of the institution, or the application of the property left by the
testator, or the charge imposed by him, shall not be considered as a condition
unless it appears that such was his intention.
That which has been left in this manner may be
claimed at once provided that the instituted heir or his heirs give security
for compliance with the wishes of the testator and for the return of anything
he or they may receive, together with its fruits and interests, if he or they
should disregard this obligation. (797a)
Comment: “Modal
Institution”.
Article
883. When without the
fault of the heir, an institution referred to in the preceding article cannot
take effect in the exact manner stated by the testator, it shall be complied
with in a manner most analogous to and in conformity with his wishes.
If the person interested in the condition should
prevent its fulfillment, without the fault of the heir, the condition shall be
deemed to have been complied with. (798a)
Article
884. Conditions imposed
by the testator upon the heirs shall be governed by the rules established for
conditional obligations in all matters not provided for by this Section. (791a)
Article
885. The designation of
the day or time when the effects of the institution of an heir shall commence
or cease shall be valid.
In both cases, the legal heir shall be considered
as called to the succession until the arrival of the period or its expiration.
But in the first case he shall not enter into possession of the property until
after having given sufficient security, with the intervention of the instituted
heir. (805)
SECTION
5
Legitime
Legitime
Article
886. Legitime is that
part of the testator's property which he cannot dispose of because the law has
reserved it for certain heirs who are, therefore, called compulsory heirs.
(806)
Article
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.
Compulsory heirs mentioned in Nos. 3, 4, and
5 are not excluded by those in Nos. 1 and 2; neither do they exclude one
another.
In all cases of illegitimate children, their
filiation must be duly proved.
The father or mother of illegitimate children of
the three classes mentioned, shall inherit from them in the manner and to the
extent established by this Code. (807a)
Comments:
1. Compulsory Heirs.
1.1. Primary and Secondary Compulsory Heirs:
1.1.1. If the person whose succession is
under consideration is a legitimate child, his legitimate children and
descendants will exclude the legitmate parents and ascendants. In other words,
the legitimate parents and ascendants are compulsory heirs only in the absence of legitimate children or descendants. The
former are secondary compulsory heirs while the latter are primary compulsory
heirs.[7]
1.1.2. If the person whose succession is
under consideration is an illegitimate child, his children, whether legitimate or illegitimate, or legitimate
descendants will exclude the illegitimate parent. In other words, the
illegitimate parents are compulsory heirs only when the deceased does not have
children, whether legitimate or illegitimate, or legitimate descendants.[8]
1.2. Concurring Compulsory Heirs:
1.2.1. The surviving spouse and
illegitimate children
1.2.2.
In regard to illegitimate parents, the illegitimate children shall be
considered be considered as primary compulsory heirs in the absence of
legitimate children and descendants[9]
1.3. Primary Compulsory heirs:
1.3.1. Legitimate children and descendants. They
are always primary compulsory heirs and will exclude the legitimate parents and
ascendants.
1.3.2. If all the legitimate children are living
and with capacity to succeed and none of them have been disinherited, only such
children shall succeed, to the EXCLUSION of the other legitimate descendants.
In other words, the nearer excludes the farther.
1.4. Adopted
Child. Rule is that he is a compulsory heir of the adopter and vice-versa
BUT no longer of the biological parent. This is because all relational ties
between adoptee and biological parent are deemed severed. Note, however, that
by way of obiter, in In re: Adoption of Stephanie Nathy Astorga
Garcia[10] , Supreme Court held that the adoptee remains
as an intestate heir of his/ her biological parent.
1.5. Secondary compulsory heirs.
1.5.1.
Legitimate parents and Ascendants
1.5.2.
Illegitimate Parents in relation to their Illegitimate Children, only when the
illegitimate children do not have children of their own.
Article
888. The legitime of
legitimate children and descendants consists of one-half of the hereditary
estate of the father and of the mother.
The latter may freely dispose of the remaining
half, subject to the rights of illegitimate children and of the surviving
spouse as hereinafter provided. (808a)
Article
889. The legitime of
legitimate parents or ascendants consists of one-half of the hereditary estates
of their children and descendants.
The children or descendants may freely dispose of
the other half, subject to the rights of illegitimate children and of the
surviving spouse as hereinafter provided. (809a)
Article
890. The legitime
reserved for the legitimate parents shall be divided between them equally; if
one of the parents should have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother,
but is survived by ascendants of equal degree of the paternal and maternal
lines, the legitime shall be divided equally between both lines. If the
ascendants should be of different degrees, it shall pertain entirely to the
ones nearest in degree of either line. (810)
Comments: 1. “Reserved
for the trunk”.
2.
In reserve troncal, there are four
parties thus: a. ASCENDANT of
[1]
See Lopez v. Lopez, G.R. No. 189984, November 12, 2012
[2]
III Tolentino, Civil Code of the Philippines, 1992 Ed., p. 125
[3]
Article 17, New Civil Code
[4]
Article 804, New Civil Code
[5]
Art. 805, New Civil Code
[6] 17
SCRA 449 (1966)
[7]
Article 887
[8]
Article 903
[9]
Article 903
[10]
454 SCRA 541 (2005)
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