WILLS & SUCCESSION
Part I
(Part II immediately follows in Older Posts)
Part I
(Part II immediately follows in Older Posts)
(For Fourth Year Section-A,
University of San Agustin School of Law,
General Luna Street, Iloilo City,
School Year 2017-2018 Ist Semester)
Atty.
EDUARDO T. REYES, III
TITLE IV
SUCCESSION
SUCCESSION
CHAPTER 1
General Provisions
Comments:
Study of succession for purposes of civil law review should be divided into: a.
Kinds of Succession, i.e., Testamentary, Legal or Intestate; Mixed
Succession b. Formalities of Last Will & Testament; c. Institution
of Heirs; d. INTERPLAY of Substitution, Accretion & Representation e.
Predecease, Renunciation & Incapacity; f. Distribution of Estate
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)
Article 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)
Article 776. The inheritance includes all the property,
rights and obligations of a person which are not extinguished by his death.
(659)
Comment: Conflicts with Art. 793
Article 777. The rights to the succession are transmitted
from the moment of the death of the decedent. (657a)
Article 778. Succession may be:
(1) Testamentary;
(2) Legal or intestate; or
(3) Mixed. (n)
Article 779. Testamentary succession is that which results
from the designation of an heir, made in a will executed in the form prescribed
by law. (n)
Article 780. Mixed succession is that effected partly by
will and partly by operation of law. (n)
Article 781. The inheritance of a person includes not only
the property and the transmissible rights and obligations existing at the time
of his death, but also those which have accrued thereto since the opening of
the succession. (n)
Comment: See Art. 793 and compare
Article 782. An heir is a person called to the succession
either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real and
personal property are respectively given by virtue of a will. (n)
Comments:
· “devisees”
– real property
· “legatees”-
personal property
· In
PRETERITION, Art 854, instituted voluntary heir gets nothing but legatees and
devisees get their property for as long as legitime is not impinged upon.
· What
happens when a testatrix creates in her Last Will and Testatment a perpetual
trust fund for administration? Is it valid?
· Read :
HILARION, JR. and ENRICO ORENDAIN, represented
by FE D. ORENDAIN v. TRUSTEESHIP OF THE ESTATE OF DOA MARGARITA RODRIGUEZ, G.R. No. 168660, June 30, 2009
|
Apparent from the decedents
last will and testament is the creation of a trust on a specific set of
properties and the income accruing therefrom. Nowhere in the will can it be
ascertained that the decedent intended any of the trusts designated
beneficiaries to inherit these properties. The decedents will did not institute
any heir thereto, as clearly shown by the following:
1. Clause 2 instructed
the creation of trust;
2. Clause 3 instructed
that the remaining income from specified properties, after the necessary
deductions for expenses, including the estate tax, be deposited in a fund with
a bank;
3. Clause 10
enumerated the properties to be placed in trust for perpetual administration (pangasiwaan
sa habang panahon);
4. Clauses 11 and 12
directed how the income from the properties ought to be divided among, and
distributed to the different beneficiaries; and
5. Clause 24
instructed the administrators to provide medical support to certain
beneficiaries, to be deducted from the fund deposits in the bank mentioned in
Clauses 2 and 3.
Plainly, the RTC was
mistaken in denying petitioners motion to dissolve and ordering the disposition
of the properties in Clause 10 according to the testatrixs wishes. As regards
these properties, intestacy should apply as the decedent did not institute an
heir therefor. Article 782, in relation to paragraph 2, Article 960 of the
Civil Code, provides:
Art. 782. An heir is a person called to the
succession either by the provision of a will or by operation of law.
x x x x
Art. 960. Legal or intestate succession takes
place:
x x x x
(2) When the will does not institute an
heir to, or dispose of all the property belonging to the testator. In such
case, legal succession shall take place only with respect to the property of
which the testator has not disposed;
x x x
We find as erroneous the
RTCs holding that paragraph 4,[14] Article 1013 of the same code
specifically allows a perpetual trust, because this provision of law is
inapplicable. Suffice it to state that the article is among the Civil Code
provisions on intestate succession, specifically on the State inheriting from a
decedent, in default of persons entitled to succeed. Under this article, the
allowance for a permanent trust, approved by a court of law, covers property
inherited by the State by virtue of intestate succession. The article does not
cure a void testamentary provision which did not institute an heir.
Accordingly, the article cannot be applied to dispose of herein decedents
properties.
We are not unmindful of our
ruling in Palad, et al. v. Governor of Quezon Province, et
al.[15] where we declared, thus:
Article 870 of the New Civil Code, which
regards as void any disposition of the testator declaring all or part of the
estate inalienable for more than 20 years, is not violated by the trust
constituted by the late Luis Palad; because the will of the testator does not
interdict the alienation of the parcels devised. The will merely directs that
the income of said two parcels be utilized for the establishment, maintenance
and operation of the high school.
Said Article 870 was designed to give more
impetus to the socialization of the ownership of property and to prevent the
perpetuation of large holdings which give rise to agrarian troubles. The trust
herein involved covers only two lots, which have not been shown to be a large
landholding. And the income derived therefrom is being devoted to a public and
social purpose the education of the youth of the land. The use of said parcels
therefore is in a sense socialized. There is no hint in the record that the
trust has spawned agrarian conflicts.[16]
In this case, however, we
reach a different conclusion as the testatrix specifically prohibited the
alienation or mortgage of her properties which were definitely more than the
two (2) properties in the aforecited case. The herein testatrixs large
landholdings cannot be subjected indefinitely to a trust because the ownership
thereof would then effectively remain with her even in the afterlife.
In light of the foregoing,
therefore, the trust on the testatrixs properties must be dissolved and this
case remanded to the lower court to determine the following:
1. The properties
listed in Clause 10 of the will, constituting the perpetual trust, which are
still within reach and have not been disposed of as yet; and
2. The intestate heirs
of the decedent, with the nearest relative of the deceased entitled to inherit
the remaining properties.
One final note. To obviate
confusion, we clarify that the petitioners, although correct in moving for the
dissolution of the trust after the twenty-year period, are not necessarily
declared as intestate heirs of the decedent. Our remand of the case to the RTC
means that the probate court should now make a determination of the heirship of
the intestate heirs of the decedent where petitioners, and all others claiming
to be heirs of the decedent, should establish their status as such consistent
with our ruling in Heirs of Yaptinchay v. Hon. del Rosario.[17]
WHEREFORE, premises considered, the petition is GRANTED.
The Order of the Regional Trial Court of Manila, Branch 4 in SP. PROC. No.
51872 is REVERSED and SET ASIDE. The trust
approved by the Regional Trial Court of Manila, Branch 4 in SP. PROC. No. 51872
is DISSOLVED. We ORDER the Regional Trial Court of
Manila, Branch 4 in SP. PROC. No. 51872 to determine the following:
1. the properties
listed in Clause 10 of Doa Margarita Rodriguezs will, constituting the
perpetual trust, which are still within reach and have not been disposed of as
yet; and
2. the intestate heirs
of Doa Margarita Rodriguez, with the nearest relative of the decedent entitled
to inherit the remaining properties.
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
“We
agree with the position of the CA that the state of being forgetful does not
necessarily make a person mentally unsound so as to render him unfit to execute
a Will.[68] Forgetfulness is not equivalent
to being of unsound mind. Besides, Article 799 of the New Civil
Code states:
Art. 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.
In
this case, apart from the testimony of Rosie pertaining to Paciencias
forgetfulness, there is no substantial evidence, medical or otherwise, that
would show that Paciencia was of unsound mind at the time of the execution of
the Will. On the other hand, we find more worthy of credence Dra. Limpins
testimony as to the soundness of mind of Paciencia when the latter went to
Judge Limpins house and voluntarily executed the Will. The testimony of
subscribing witnesses to a Will concerning the testators mental condition is
entitled to great weight where they are truthful and intelligent.[69]More importantly, a testator is presumed
to be of sound mind at the time of the execution of the Will and the burden to
prove otherwise lies on the oppositor. Article 800 of the New Civil Code
states: x x x”
· 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 must 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 testator’s will of the forced heirs
or anyone of them, either because they are not mentioned therein, or, though
mentioned, they are neither instituted as heirs nor are expressly disinherited.
Disinheritance, in 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 willthere 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
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