AUF LAW BATCH 2 MAGIC NOTES
WILLS AND SUCCESSION FINALS REVIEWER
August 22, 2009
1. RESERVA TRONCAL
Reservation established by law for the benefit of certain of certain close relatives
Article 891. The ascendant who inherits from his descendant any property which the latter may have
acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came. 2. Purpose
3.
To return property which have strayed from one family to another thru the accident of death of death
History
Only one w/c survived under the NCC among the diff reservas diff reservas
Congress thought: it was not yet time to do away with Reserva Troncal
Find the provision, Art 891 NCC: establishes a reservation in favor of close of close relatives
4.
Disabuse yourself with yourself with notion that RT is only for Real Property. It can also be Personal Property.
5.
Subjects of Reserva of Reserva Troncal A‐‐‐‐‐B
C‐‐‐‐‐D
E
G
F I
Land
H Z 5M
Sale
a) A = Origin b)
I = Descendant‐Propositus
c)
G = Reservista
Not just mere Usufructuary. He is the actual owner. But such ownership is subject only to a Resolutory condition. If there are existing Reservatarios at time of death of the reservista, her rights are extinguished and automatically transferred to said Reservatarios.
rd
d) 3 Degree Relatives of Propositus of Propositus = Reservatarios 1
AUF LAW BATCH 2 MAGIC NOTES
6. Propositus (I) before his death sold the land for P5M to Z. Is there a Reserva Troncal?
None. There is no substitution in RT. “The very same prop” earlier acquired by the propositus must be
the one acquired by the ascendant by operation of law) of law)
Note: Regardless of the of the type of prop, of prop, there wld be RT as long as compliant with the reqts.
7. To be Reserva, there must be two (2) transfers. a) From the ascendant/brother/sister ascendant/brother/sister – – to the Descendant Propositus (w/c must be by gratuitous title) b) from the descendant Propositus – Propositus – to the ascendant Reservista (by operation of law) of law) •
A transfer by operation of law of law is necessarily by gratuitous transfer (but not vice versa).
You can only have a transfer by operation of law of law if: i.
acquired it as a legitime
ii.
acquired it by intestate succession nd
8. Prior to the 2
transfer, if the prop is still w/ the Propositus, there is still no RT, bec Reserva commences
only from the transfer by operation of law. of law.
Hence P is free to deal with the prop: he can sell/transfer it.
That is why civilists say the Descendant is regarded as the arbiter of the of the reserva: bec he has the prop, to decide whether there wld be reserva later on.
He is the life & death of the of the reserve.
If I If I dies intestate without issue, G will inherit. From that moment on, Reserva Exists.
9. Requirement: the P must not have descendant (children)‐ otherwise the latter will inherit. 10. P dies intestate (no will) = so his entire estate is transferred to the Reservista (now becomes the owner). 11. Who are the Reservatarios?
Must be within 3rd degree relatives of Propositus. of Propositus.
Must belong to the family line where the property originated
Must survive the Reservista
12. Can the Origin be a reservatario?
YES. In fact, this is the most perfect scenario that the prop return to the origin.
13. Can he be the Reservista?
NO. The Origin cannot be the reservista because the Reservista must be another ascendant.
14. Can the Grandmother (B) be a reservatario?
Two (2) views 2
AUF LAW BATCH 2 MAGIC NOTES
6. Propositus (I) before his death sold the land for P5M to Z. Is there a Reserva Troncal?
None. There is no substitution in RT. “The very same prop” earlier acquired by the propositus must be
the one acquired by the ascendant by operation of law) of law)
Note: Regardless of the of the type of prop, of prop, there wld be RT as long as compliant with the reqts.
7. To be Reserva, there must be two (2) transfers. a) From the ascendant/brother/sister ascendant/brother/sister – – to the Descendant Propositus (w/c must be by gratuitous title) b) from the descendant Propositus – Propositus – to the ascendant Reservista (by operation of law) of law) •
A transfer by operation of law of law is necessarily by gratuitous transfer (but not vice versa).
You can only have a transfer by operation of law of law if: i.
acquired it as a legitime
ii.
acquired it by intestate succession nd
8. Prior to the 2
transfer, if the prop is still w/ the Propositus, there is still no RT, bec Reserva commences
only from the transfer by operation of law. of law.
Hence P is free to deal with the prop: he can sell/transfer it.
That is why civilists say the Descendant is regarded as the arbiter of the of the reserva: bec he has the prop, to decide whether there wld be reserva later on.
He is the life & death of the of the reserve.
If I If I dies intestate without issue, G will inherit. From that moment on, Reserva Exists.
9. Requirement: the P must not have descendant (children)‐ otherwise the latter will inherit. 10. P dies intestate (no will) = so his entire estate is transferred to the Reservista (now becomes the owner). 11. Who are the Reservatarios?
Must be within 3rd degree relatives of Propositus. of Propositus.
Must belong to the family line where the property originated
Must survive the Reservista
12. Can the Origin be a reservatario?
YES. In fact, this is the most perfect scenario that the prop return to the origin.
13. Can he be the Reservista?
NO. The Origin cannot be the reservista because the Reservista must be another ascendant.
14. Can the Grandmother (B) be a reservatario?
Two (2) views 2
AUF LAW BATCH 2 MAGIC NOTES
Sir: Not qualified to be a Reservatario because she is not in the direct line. She can later on get married to another person & she can bear a child later– so upon her death – death – there wld possibility that her child will eventually get the reserva. There would be possibility that the property will not return, thus frustrating the purpose of reserve of reserve troncal.
15. Hence to be a reservatario, you must satisfy the DUAL‐BLOOD relationship. You must be related by blood to the Propositus (w/in 3rd degree) and related by blood at the same time to the Origin. 16. Who will get the property?
The law reserves the prop in favor of a of a class.
But within that class, other rules of succession of succession will apply to determine who will get the property.
a) Rule of Preference of Preference in Direct Lines (Direct ascending preferred) b) Rule of proximity of proximity (The near excludes the far) 17. P died intestate. His estate consists of a 4M land (which came from the origin) and 6M other properties = 10M (estate). What property is reservable?
Only those property which previously came from the Origin.
Will entire land be subject to the Reserva?
YES. Minima & Maxima not applicable here because he died intestate. The entire land will pass by
operation of law. of law. 18. But if P if P died Testate, you apply Reserva Maxima and Reserva Minima. Reserva Maxima
Hanggat kasya sa legitime, isaksak doon
As much of legitime of legitime should be reservable
Since ½ of 10M of 10M is 5M, it is obvious that 4M can be contained in the legitime. Thus, the entire 4M lang is reservable.
Reserva Minima
The land passed partly by will & partly by operation of law. of law.
Thus, only ½ will be reservable or 2M.
19. Sir: But these reserva minima & maxima will not apply if the if the P died intestate. 20. A
B
C
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AUF LAW BATCH 2 MAGIC NOTES
D G M N
E H
I J
O P Q R
F K
L
S T
U Z
1st Marriage: D‐‐‐‐‐‐E 2nd Marriage: E‐‐‐‐‐‐F 21. B donated land to J. J died intestate. F inherits. Is there a reserva?
YES. When F dies, property will now go to B.
Because direct ascending line excludes collateral line.
22. If B dies, property will go to G, H, I, K, L. Will they inherit equally?
NO.
Apply the rule on Double share: full blood siblings will get twice as much as that of the half blood siblings (same rule applies to Nephews & nieces)
23. If H & L dies?
Shares will go to their children (nephews or nieces of propositus J)
There is representation in RT as long as representative is within the 3rd degree.
24. Generally speaking, representation is given only to the direct Descending line.
No representation in the collateral line except only when the nephews & nieces survive with at least 1
uncle or aunt. The Distribution then will be by line (per stirpes).
Note: If all Uncles and Aunts are dead, the nephews & nieces (M N O P Q R S T U) will be the
reservatarios.
But this time they will be inheriting in their own rights (bec they did not survive with at least one aunt/uncle). So distribution is per capita but still applying the rule of double share: hence those children of the full blood sibling of propositus J will get twice as much.
25. How about Z? Can he get the property as reservatario?
th No more. He is a relative within the 4 degree already.
26. How is reserva troncal extinguished?
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AUF LAW BATCH 2 MAGIC NOTES
a) Death of the Reservista
The Property will now go to Reservatarios.
What if Reservista and Reservatarios sell the property?
Example: Prior to the death of the Reservista, he sold the prop to Mr. X & the Reservatarios also sold it
to Mr Y.
This is allowed but subject to suspensive & resolutory conditions.
Sir: As to who will get the property between X & Y, the winner is whoever PRAYS BETTER (he, he, he).
Mr X = will pray that Reservista outlive the Reservatarios (& Mr Y = vice versa).
b) Waiver or Renunciation by All the Reservatarios
Note: SHOULD BE All. So if they are 10 and only 9 waived, still the RT continues over the entire
prop.
The waiver executed by the living Reservatarios will not prejudice those Reservatarios who are yet
to be born (the latter will not be affected by the waiver of the former). c)
Death of ALL the Reservatarios
d) The Property is Registered as Free Property
Rights of an innocent purchaser for value is protected.
COLLATION OF LEGITIME
1.
What is Collation?
Collation has 3 different meanings as used in the Civil Code: a) Addition
the value (not the property itself) of all gratuitous dispositions made by the testator made during his lifetime will be added to his net estate to determine all the hereditary estate and the legitime of the compulsory heir (mathematical & mental process).
Note: the prop is not brought back only its value.
b) Imputation
Gratuitous dispositions (value) to the compulsory heirs during the testator’s lifetime will be imputed to their legitime, while those given to others will be charged to the free portion.
c)
Restoration
Actual Restoration of Property to the Estate
Not really collation
Happens only if donation is totally inofficous. 5
AUF LAW BATCH 2 MAGIC NOTES
Sir: We will be concerned with the FIRST TWO MEANINGS. 2.
Assume that X has 2 leg children (A & B), an illegitimate child (C) and wife (W). •
In 1975, A demanded from his father his inheritance.
•
So he was given by donation inter vivos (DIV) a parcel of land (P20K value in 1975).
•
A executed a waiver.
•
X died in 1995 – w/ a will and instituted B & C as heir
•
X left: Gross Estate = P200k & Debts = P100k
Sir: No preterition here, even if wife not mentioned (not direct line) as well as A (not totally omitted, he received already by DIV during testator’s lifetime).
No valid waiver of A.
Let’s Go to the PROCESS OF COLLATION. a)
Determine the NET ESTATE.
b)
So, GE (200k) – Debts (100k) = NE (100k)
Do ADDITION to determine Total Hereditary Estate.
Gratuitous Dispositions (20k) + NE (100k) = THE (120k)
Always use value at the time of donation because since that time property was already owned by donee.
c)
Use the THE (120k) to determine the Legitime.
½ (60k) will go to A & B (30k each). Illegitimate C will get half as much as a legitimate gets (15k). Wife gets as much as a legitimate gets (30k).
d)
Charging.
The 20k DIV given to A will be charged to his legitime, so A will receive 10k only.
Free Portion (15k) will now go to B & C (7,500 each) because they are the instituted heirs.
If F.P. is not sufficient to cover legacies, devises & DIVs, preference is given by law to Donations Inter Vivos (Reason: Basically irrevocable & Priority in time is priority in right.)
Final Distribution:
3.
A= 30k – 20k = 10k
B= 30k – 7,500 = 37, 500
C= 15k – 7,500 = 22, 200
W = 30k
X has 3 leg children (ABC) and Spouse (W). •
X Died with a will and instituted as heirs A, B, C, & W.
•
He left a gross estate of 400k with a debt of 40k.
•
Made the ff Legacies/Devises in his will: 6
AUF LAW BATCH 2 MAGIC NOTES
•
70k (H & L) to G
30k (Car) to H
60k (Cash) to I
Total: 160k
During his lifetime, he made the ff DIVs:
1975, 20k (land) to A
1985, 70k to F
Distribution:
a) GE (400k) – Debts (40k) = 400K (NE) b) Addition: NE (360k) + DIVs (70k & 20k) = 450k (THE) c)
Legitimes:
½ of THE is 225k. So, ABC gets 75k each.
Surviving spouse W gets 75k.
Total Legitime is 300k.
Free Portion is 150k.
d) Charging or Imputation
Give A only 55k because of 20k DIV already given to him.
The DIV to F (70k) will be deducted from F.P. (150k)
Remaining F.P. is 80k.
Note: Before satisfying Leg/Dev, satisfy DIVs first.
Since 80k is not sufficient to satisfy Leg/Dev and there are no Preferential Leg/Dev, just distribute proportionately: G gets 35k, H gets 15k, and I gets 30k.
Final Distribution:
A= 75k – 20k = 55k
B= 75k
C= 75k
W= 75k
F= 70k
G= 35k
H= 15k
I= 30k
4. Article 912
If the devise consists of real prop which cannot be conveniently divided.
If the reduction does not absorb half of the property value= it will go to the devisee
So if the reduction absorbs half of the prop value= it will go to the compulsory heir
But in both instances, there must be compensation for the excess value. 7
AUF LAW BATCH 2 MAGIC NOTES
What if reduction is exactly ½ if the value?
2 views: Jurado (Give to Compulsory Heirs because of the letter of the Law) and Paras & Tolentino (Devisee because of intention of the testator).
Sir: Better rule is that property should go to the devisee. Reason: the animus testandi of the testator. He really intended to give said devisee the property.
What if the property is a personal prop which cannot be conveniently divided? Will you apply Art 912?
Sir: Yes, otherwise what rule will you apply?
5. Note: Imperial Case
Ruling: The property itself is not brought back into collation. Only the value.
6. X has 2 leg children (AB) •
In 1975, he donated to his friend F a land (P40K).
•
In 1985, he donated to his friend G a land (60K).
•
When x died in 2005, he had a Gross Estate of 500K and Debts amounting to 700k.
How do we distribute the estate?
No such animal as a negative estate, the worst will be a zero estate.
Go to the process of Collation because there are compulsory heirs & will dispositions made.
a) GE (500k) – Debts (700k) = 0 (NE) b) Addition: NE (0) + DIVs (40k & 60k) = 100k (THE)
c)
Note: Just fictitious mathematical computations because properties are with donees.
Legitimes:
½ of THE is 50k. So, AB should get 25k each.
Free Portion is 50k.
d) Charging or Imputation
F.P. (50k) cannot cover both donations.
Law on Property: Latest Donation will be Suppressed.
Hence, the rule is Give Preference to the Earlier Donations.
So, 50k (F.P.) – 40k (Earlier Donation to F made in 1975) = 10k (Remaining Free Portion)
10k (Remaining F.P.) – 60k (Inofficious Donation to G) = ‐50k
Thus, G should give 50k back to be used to satisfy legitimes of A & B.
August 29, 2009
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AUF LAW BATCH 2 MAGIC NOTES
1. DISINHERITANCE is the only legal way by which testator may deprive compulsory heir of the legitime. 2. Article 915. A compulsory heir may, in consequences of disinheritance, be deprived of his legitime, for causes expressly stated by law. Article 916. Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. Article 917. The burden of proving the truth of the cause for disinheritance shall rest upon the other heirs of the testator, if the disinherited heir should deny it.
3. What are the requisites for a valid disinheritance? a) b) c) d) e) f) g)
Effected only through a valid will; For a cause expressly stated by law; Cause must be stated in the will itself; Cause must be certain and true; Unconditional; Total; and The heir disinherited must be designated in such a manner that there can be no doubt as to his identity.
4. Testator says, I disinherit my youngest son D because he has maltreated me. He slapped me in front of so many people. Valid?
Yes.
5. Testator says, I disinherit my youngest son D because looks more than our neighbor than me. Valid?
No. Cause not specified by law.
6. Disinheritance is total. Why can it be not partial?
Basis of Disinheritance is to punish the offense committed against Testator. Testator cannot be partially offended.
Sir: is it possible for a lady to be partially virgin? – No, either a virgin or not
7. Is partial Disinheritance valid?
8.
No. Invalid disinheritance, hence the imperfectly disinherited heir will still get his legitime.
Your father said in his will (made in 2001) – If my son Oliver, should ever live a dishonorable life he will be disinherited, & then in 2004 you started cohabiting with Mr. Evangelista. Is there a valid disinheritance.
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AUF LAW BATCH 2 MAGIC NOTES
Not valid disinheritance because the legal cause must already be existing at the time when the will was executed.
9. Your father disinherited you, Mr. Evangelista, because you are cohabiting with Mr. Mempinm if however he should mend his ways and realize the foolishness he is committing and mend his ways and return home and serve me well before I die, this disinheritance shall not be valid? Is there a valid disinheritance?
Condition – future and uncertain event
Valid Disinheritance, condition refers not to the disinheritance. It is the revocation of the disinheritance that is conditional, and this is not prohibited.
10. Supposing the testator made two (2) wills: 1985 – “I am greatly offended by what my son D had done, he uttered invectives against me and even slapped me in front of many people (maltreatment).” 1990 – another will, “I hereby disinherit my son D for the reasons I stated in my will of 1985”
Valid disinheritance? •
YES. The requisites for a valid disinheritance need not all be found in a single will. They may be
found in 2 or more wills as long as connections between or among these various wills are very clear. 11. Article 919.
What are the causes for disinheriting a child or descendant? a) When the heir has been found guilty of an attempt against the life of the testator, his/her descendants or ascendants, and spouse in case of children and parents; b) When the heir has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless; c) When the child/descendant has been convicted of adultery or concubinage with the spouse of the testator; d) When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; e) Refusal without justifiable cause to support the testator who disinherits such heir. f)
Maltreatment of the testator by word or deed by the child/descendant;
g) When the child/descendant leads a dishonorable or disgraceful life; 10
AUF LAW BATCH 2 MAGIC NOTES
h) Conviction of a crime which carries with it a penalty of civil interdiction. 12. Why is the last ground included (conviction of a crime with penalty of civil interdiction)?
By the way, the offense here need not be committed against the testator or his close relative. It may be committed against a total stranger.
The offender under civil interdiction here may still execute a will. He is prohibited from executing acts inter vivos, but he is not precluded from executing acts mortis causa.
If he can make a will, why can’t he not inherit?
If you are sentenced to a penalty that carries with it Civil interdiction, you must have committed something very seriously wrong.
It is an accessory penalty attached only to afflictive penalties (Kaya ‘yung offense mo na na‐commit tlagang matindi or henious).
So, there is an element of scandal and dishonor insofar as your family is concerned.
That reveals that there is now a very wide and deep moral chasm between you and the testator. That’s why it is included.
13. You stabbed your father with intent to kill, you were not prosecuted however because your family wanted to avoid a scandal, can your father disinherit you?
YES, on the ground of maltreatment. Maltreatment includes not just acts but words.
14. Supposing that you were convicted of an attempt against the life of your brother, can your father disinherit you?
YES.
15. Supposing you were granted absolute pardon. Can your father still disinherit you? Why?
YES. The basis of disinheritance is to punish the offense. The absolute pardon by the state does not
erase the offense. The offense is still there. 16. In a criminal case, you testified against your father on the crime of murder, the court acquitted him on the ground of reasonable doubt, can he disinherit you?
NO. Reasonable doubt is not tantamount to groundless. There must have been some evidence but it
just failed to meet the Consti requirement of proof beyond reasonable doubt. 17. One of the grounds for disinheritance is when a child or descendant commits adultery with the wife of the testator, does this mean incest?
Could be.
Law does not make distinction between biological mother and second wife (Sir:
Karimarimarim naman ito!)
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AUF LAW BATCH 2 MAGIC NOTES
18. Another ground is refusal without just cause to support the testator. If you refuse to support your father without legal basis, can he disinherit you?
YES.
Sir: Pero anong mawawala sayo? Practically, Wala. Because ultimate basis of support is necessity. If your father has the legal right to demand support from you, that means he has no money and you have money. Kaya parang wlang nawala sau kahit i‐disinherit ka, kasi wla ngan syang pera.
But not entirely useless ground. Ang buhay parang gulong. There’s always the possibility of a radical change in the fortunes of your father. Eh kung manalo sa lotto, patay kang bata ka, you are validly disinherited.
19. Your father came home early one afternoon and got the shocked of his life, that you were in bed with the family driver who is married. You were having the time of your life. Can your father disinherit you?
NO, the legal cause of living a disgraceful life cannot be a basis of disinheritance upon one act. It must
be continuous and habitual. Once is not enough. 20. Article 920
Causes for disinheriting a parent: a) When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue; b) When the heir has been found guilty of an attempt against the life of the testator, his/her descendants or ascendants, and spouse in case of children and parents; c)
When the heir has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless;
d) When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made; e) When the parent/ascendant has been convicted of adultery or concubinage with the spouse of the testator; f)
Refusal without justifiable cause to support the testator who disinherits such heir.
g) Loss of parental authority for causes specified in the Code; and h) Attempt by one of the parents against the life of the other, unless there has been reconciliation between them. 21. Your father tried to kill your mother, no charges were filed. Can you validly disinherit your father?
YES.
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Assuming they reconciled?
Not anymore. Mother, the direct offending party, already forgiven your father. So no legal or even
moral basis for you to be more exacting. 22. Same, but this time prosecuted and convicted, after conviction there was a tearful reconciliation, can you still disinherit?
YES, ground will not be under number 8, but number 2 (found guilty of an attempt against the life).
23. With respect to 1st ground, when the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue. Distinguish.
First part, abandonment, covers all (male and female) children.
Second part, inducement of immoral life or attempt against the virtue, covers only female members of the family.
If father attempted to sexually assault a son, not counted as a ground. At the time law was made, such practice was not yet prevalent.
24. Article 921
Causes for disinheriting a spouse: a) When the heir has been found guilty of an attempt against the life of the testator, his/her descendants or ascendants, and spouse in case of children and parents; b) When the heir has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless; c)
When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made;
d) When the spouse has given cause for legal separation; e) When the spouse has given grounds for the loss of parental authority. f)
Refusal without justifiable cause to support the testator who disinherits such heir.
Dean Navarro: Take note of the provisions of Article 55 of the Family Code, 10 grounds for legal separation. Alcoholism, repeated violence, sexual infidelity kahit na minsan lang, will also legal basis for disinheritance.
25. Under the law, the moment there is reconciliation, what is the effect?
It will deprive the offended party of the right to disinherit. If there is already a disinheritance made, such will be rendered ineffective.
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26. When is there reconciliation? What is reconciliation?
Reconciliation is the mutual restoration of feelings to the status quo. It is indeed the resumption of friendly relations.
27. Is it the same as pardon?
NO.
28. How does it differ from pardon?
A pardon merely forgives the offending party, but in reconciliation, you will accept the other and bring back the relationship you had before the cause of disinheritance.
29. You were disinherited by your father for attempting to kill him, you cannot inherit from your father, what about your children?
YES, my legitime will go to my children.
Why does the law allow this?
The offense is something personal to the validly disinherited heir. The disinherited heir should be the only one punished.
If the descendant will not be allowed to inherit the l, that will amount to penalizing them twice (first: depriving them of the legitime, 2nd: already very unfortunate to have that disinherited heir as their parent)
The law has always display a great solicitude towards children.
30. If an heir is validly disinherited he does not get anything, what about if the disinheritance is not valid, does he get anything?
YES, he gets his legitime.
Can he get more than his legitime?
NO. Limited only to his legitime…except when the testator makes an invalid institution of heir in case of
preterition. 31. X has 4 legitimate children , A B C D. X says in his will: I hereby give my entire estate to my children A & B. I hereby disinherit my son D because I don’t like his face or he married someone I did not like (imperfect disinheritance). C is not mentioned. The estate is P120,000. How will you distribute this?
There will be preterition. Institution of heirs is annulled. 120,000 will be divided equally among the four. 30,000 each. D, the imperfectly disinherited heir, gets more than his legitime.
Supposing that C is not preterited?
A, B, C, D will get 15,000 each as their legitime. Remaining will go to A, B, C @ P20,000 each. 14
AUF LAW BATCH 2 MAGIC NOTES
If D is validly disinherited?
A, B, C @ 40,000 each.
Supposing D has 2 children, E & F?
E & F will get legitime @ 7,500 each. Rest will go o A, B, & C.
In a valid disinheritance, the children can get only up to the extent of the legitime of the disinherited parent nothing more if there is no disposition of the free portion.
32. LEGACIES and DEVISES 33. Legacies and devises are testamentary dispositions giving an economic benefit or advantage other than an aliquot or fractional part of the inheritance. This is to distinguish the giving of these gifts from the institution of heir.
Legacies and devises are separated by the testator from the universality of the inheritance that would have appertained to the heir, and they have for their purposes: (1) The compliance by the T of social duties (2) His rewarding of love and devotion of friends and relatives (3) His show of gratefulness for acts done to him (4) His giving funds to beneficent and charitable institution 34. Who has the duty of giving the legacies and devises?
It depends. •
As a general rule, if no one is charged with this duty, it is the estate which must give the legacies and devises. The estate is of course represented by the executor, or the administrator with a will annexed.
•
If the T gives this duty to the compulsory heirs, or to the legatees and devisees, they must comply with their duties, subject to the limitations imposed by law.
35. What is a Sub‐legacy or Sub‐devisee?
Article 925 (1) – A testator may charge with legacies and devisees not only his compulsory heirs but also
the legatees and devisees.
Example: I give you P1M but give P25k to Mr. Forto.
36. How does a sub legacy differ from a disposition captatoria?
Similarity: Both are given for the benefit of 3rd persons.
Difference: In sub legacy, the disposition is actually written in the will while in captatoria the testator is obliging the heir to make a disposition in his will. 15
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37. Can a person give by way of legacy or devise something which he does not own?
YES.
The point is, as long as the testator knows that it does not belong to him, and still he gives it, there is a valid legacy or devise since there is an implied order from estate to acquire such property.
Order may be express or implied. The law does not extinguish.
38. X thought he owned a car and gave it to A by will. It turned out that it was Mr. B who actually owns the car. Valid Legacy?
Invalid. Since X just thought that he owned the car.
If there is no knowledge or mistaken belief of ownership, it is invalid
Suppose that after two yrs after execution of a will, X bought the car from B. Valid Legacy?
YES, Valid Legacy. Since car was already acquired by X.
Suppose that after two yrs after execution of a will, A bought car from B. Valid Legacy.
NO, still invalid. Since the legacy in the will was void because X just thought he owned the thing, the
subsequent acquisition by A is immaterial. 39. X gives Ms. Samson the house and lot at 123 Espanya St. Manila by will, but she was actually the owner of the house, is there a valid devise?
NO, even if X knew that she was the owner. Because the fact remains that Ms. Samson is already the
owner. Suppose after 3 months, Ms. Samson sold property to Ms. Lino. Valid Devise?
NO, still invalid. Invalidity is determined at time of execution of the will.
Suppose instead of selling property to Ms. Lino, she sold it to X. Valid Devise?
YES, now it’s already valid.
By acquiring property, the intention of the testator to validate the
testamentary provision is revealed. The intention is the guiding rule in testamentary succession.
Article 930 can be applied by analogy.
40. Same facts (X gave property to Ms. Samson which is presently owned by Mr Feliciano and this fact was known by the testator. 1 year after, Ms Samson bought the same, is there a valid device?
YES.
What will you get?
She can claim reimbursement. Since testator knew he was not the owner, he is actually ordering the acquisition of the thing. 16
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Supposing Feliciano instead of selling, just donated?
NO. Reimbursement cannot be claimed anymore.
41. I give Ms. Samson my farm in Pampanga, 6 months after execution of the will, testator mortgaged the proprety, testator dies is the estate oblige to pay the loan to free the property?
YES.
Would it make a difference if mortgage was before execution of will?
No difference. Estate is still obliged to pay loan.
42. Supposing instead of mortgaging the property, the testator entered into an antichresis with A, will the estate be under the same obligation to pay the loan?
YES, antichresis (and any other encumbrance or lien) are covered although law (Art. 934) mentions only
pledge and mortgage as long as it is given to secure or guarantee a recoverable debt. 43. Testator entered into a acontract of easement olf right of way with A. is the estate obliged to extinguish the easement?
NO, any other charge, perpetual or temporary, with which the thing bequeathed is burdened, passes
with it to the legatee or devisee. 44. Testator says in his will, I give my credit of 1M to Ms Samson against Ms. Lino (legacy of a credit), before the death of testator, debtor made a partial payment of 200k. Will there be still a valid legacy?
YES, but only up to P800k.
45. Same facts, but before his death, the testator filed an action for collection against Ms. Lino, case pending when he died. Is there a valid legacy?
No more. The moment the testator files an action, the legacy of credit or legacy of condonation of a
debt is rendered ineffective. 46. I give to Ms. Samson by way of legacy the condonation of her debt of 1M.
If testator files an action against Ms. Samson before he dies, such legacy is rendered ineffective.
47. With respect to generic condonations, such should be interpreted only to apply only to existing obligations at the time of execution of the will. 48. Testator owes you 30k, In his will, he gives Ms Samson by way of legacy 40k, how much can she collect?
P70k (30k as credit and 40k as legacy).
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Supposing testator says, I order that this 40k legacy be applied to her debt. How much can she collect?
P40k (30k will be testator’s payment for his debt)
49. I give to Ms Samson coconut farm, after death it was discovered that while he owned hectares of sugar land and rice land he did not own a piece of coconut land, valid devise?
None.
I give to Ms. Samson my car, after death although he is a multibillionaire, he did not own a single car. Valid Legacy?
YES.
What’s the reason for the difference? Why is a generic devise not valid if there is no such property in the estate? Why is a generic legacy still valid even if there is no such property in the estate?
The genus in personal property is determined by nature while in real property, there is no genus, because each real property is individualized by the efforts of man.
50. Up to when will a legacy for education last?
Until legatee is of age, or beyond the age of mage of majority in order that legatee may finish some professional, vocational, or general course, provided he pursues his course diligently. (Art. 944, par. 1)
51. What about a legacy for support?
It lasts during the lifetime of the legatee, unless testator provides otherwise.
How do you fix the amount?
Determine if Estate is capable of supporting the legatee.
If there is already a habit of giving a said amount as support by testator when he is still alive, such amount will be the basis.
52. When does the legatee or devisee acquire ownership of the thing given by way of legacy or devise?
From the moment of death (Art. 777). If what has been given is something determinate which is owned by the testator.
53. Supposing the device or legacy is something not owned by the testator?
There has to be acquisition first.
54. What about the right as distinguished from ownership?
From the moment of the death of the testator as long as legacy or devise is simple and unconditional.
If conditional, we must still see if condition will in fact be fulfilled.
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Dean Navarro:
Once condition is fulfilled, I submit that retroactivity should apply.
That would
harmonize it with the rule in Art. 777. 55. Article 911. Order of Preference in the Hereditary Estate
After the net hereditary estate has been ascertained, what should be the order of payment? a) First, give the legitimes b) Then the donations inter vivos c)
Then the preferred legacies and devises
d) Then all other devises and legacies pro rata (in case the estate is not sufficient 56. In Article 950, there is another Order of Preference: a)
Remuneratory legacies and devises; •
Those which testator gives because he feels morally obliged to compensate certain persons, for services which should not however constitute demandable debts.
b)
Legacies or devises declared by Testator to be preferential;
c) Legacies for support; d) Legacies for education; e) Legacies or devises of a specific, determinate thing which forms part of the estate; f)
All others, pro rata.
57. When do you apply Articles 950 and 911?
Art. 950 should only be applied when the conflict is exclusively among the legacies and devises.
58. Remuneratory
Intended to pay previous services which does not constitute demandable debt.
59. If the testator gives you two legacies ‐ one onerous, the other gratuitous ‐ can you accept gratuitous and reject the onerous?
You have to accept both.
60. Can you accept the onerous and reject the gratuitous?
Yes, what the law prohibits is only accepting the gratuitous and rejecting the onerous.
Unless of course testator makes it clear that both should be accepted.
61. Article 957 – IMPORTANT.
What are the three situations that will render the legacy or devise ineffective? a) Transformation b) Alienation c)
Loss 19
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62. When is there Tansformation?
When the nature of thing has been changed – coconut land to fish pond.
If thing changed in its form (physical appearance) and denomination (name by which the thing is called – If bracelet is melted and turned to a ring).
Farm land to a resort. (Form and denomination changed)
63. Assume that a bracelet was given by legacy, added diamonds, is there transformation?
None , it is still a bracelet.
64. When is there Alienation?
If the testator gives something, subsequently alienate it to a third person, the question that should be asked is, did the testator intend to permanently part with ownership of the thing?
If yes, legacy or devise ineffective, if no, legacy or devise is valid. If right to repurchase, legacy or devise is valid.
This is why the law itself exempts from operation of these rules where property is alienated with right to repurchase.
65. If A gave B his H&L at Manila, subsequently donated to C and delivered the thing but executed only in a private document, devise is ineffective because there is no intent to permanently part with the thing since the donation is null and void.
Even if A is able to recover property by reason of nullity, legacy or devise remains without effect.
66. Loss: Make a distinction.
If the loss happens during the lifetime of the testator, the cause of the loss is immaterial. (So if testator gives you by legacy a particular car. Before his death, he burned his car. Legacy becomes ineffective.)
If after the death, it depends: •
If loss is due to the fault or negligence of any of the heirs, then legacy remains valid. Law imposes solidary liability among the heirs who has taken possession of the property.
•
If loss is due to caso fortuito, legacy or devise is rendered ineffective.
67. Article 959 ‐ Disposition made in general terms in favor of testator’s relatives – How would you construe it?
Give property to relative nearest in degree.
68. Testator X dies survived by spouse W, grandfather GF, brothers A & B, nephew D son of predeceased brother C. Said in his will: I give free portion to my relatives. Who will get the Free Portion?
GF, A, & B. Since they are the nearest relatives.
Why not D? 20
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•
Why not W? •
No. He cannot represent C. She is not a relative.
In Article 959 – the rule that applies is the rule of proximity only!! Disregard other rules of succession. No representation, no preference between lines, etc.
69. Would it make any difference if testator said in his will: I give the free portion to those entitled thereto?
YES. He is in fact invoking the rules of Intestate Succession. Therefore, free portion should go to his
legal and intestate heirs.
September 12, 2009
1. ACCRETION
Article 1015. Accretion is a right by virtue of which, when two or more persons are called to the same
inheritance, devise or legacy, the part assigned to the one who renounces or cannot receive his share, or who died before the testator, is added or incorporated to that of his co‐heirs, co‐devisees, or co‐ legatees.
Concept of Accretion. •
The right of accretion occurs when two or more persons are called to the same inheritance, legacy or devise, but, by reason of (1) predecease, or incapacity, or repudiation, a vacancy is created in the inheritance.
•
The effect of such a situation is that the vacant portion which had been previously assigned to the one who died before the decedent, or who is incapacitated to succeed or who repudiated his inheritance, legacy or devise, is added or incorporated to that of his co‐heirs, co‐devisees, or co‐legatees.
Reason for Accretion. Accretion is a right based on the presumed will of the deceased that he prefers to
give certain properties to certain individuals, rather than to his legal heirs 2. Accretion is one of the more complicated aspects of succession.
Why? The problem of determining when to apply the rules on accretion and when the other rules on
succession. 3. There are certain basic notions when to apply . (It should be clear that there are notions)
ISRAI
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A. Basic rule, determine the intention of the testator (anchored on the rule that testacy is preferred over intestatacy). The number 1 rule to follow is apply the rules of institution of heirs and designation of legacies and devices;
B. As the owner of the property, another rule is primacy of the will or power of the testator to designate substitute;
C. Law on legitimes, they are not subject to substitution. The testator cannot name any substitute for the legitime. The rule on representation will apply, with respect to the shares of the voluntary heirs the rule on substitution will apply (supposing there is no substitute given by the testator from the free portion, this is where accretion comes in); D. Accretion, if there are co‐heirs, co‐legatees, or co‐devices, give the vacant portion to them. 4. Accretion is basically a right in Testamentary Succession.
There is accretion in case there are two or more persons who are called to the same inheritance pro indiviso, aliquot or fractional part of the whole, there is a vacancy cause by repudiation, incapacity, or predeceased.
5. Requisites for Accretion (a) Unity of object. (one inheritance) (b) Plurality of subjects. (two or more to inherit ordinarily) (c) Vacant potion. (ex: repudiation of his share by one of those called to inherit) (d) Acceptance (of the portion accruing – by reason entitled) 6. If there are no co‐heirs, co‐devisees, or co‐legateess, back‐up is intestate succession. 7. If fungible things, accretion is possible as long as there is no EARMARKING or PHYSICAL SEGREGATION
I give the balance of my savings at BPI to A and current account at PNB to B, and cash on hand to C. (there is earmarking )
I give the balance of my account to A B and C. (there is no earmarking in this case)
8. In Intestate or Legal Succession, there is accretion (Art. 1018) in case of repudiation. What about in predecease and incapacity?
Jurado maintains that there is no accretion in such cases, only in case of repudiation.
In reality in intestate succession, only repudiation creates vacancy. Meaning, incase of predecease, if there is a representative the representative takes the place of the predecessor. If there is no heir to represent, you simply disregard him and give the part to the mass of the estate and give it to the legal heirs.
However, Paras maintains that there is accretion in both cases of repudiation (Art. 1015) and incapacity (Art. 1015) although Art. 1018 mentions only repudiation, without prejudice to the right of
representation. 22
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•
Note: In case of predecease in legal succession, there is really no vacant portion, and hence, no
accretion for the survivors inherit in their own right ; but whether or not there is accretion is
really immaterial for the effect is the same, namely, the part affected is given to the intestate heirs.
9. If there is going to be accretion the co‐heirs take it in the same proportion that they inherit.
Article 1019.
The heirs to whom the portion goes by the right of accretion take it in the same
proportion that they inherit. 10. Refer to illustration… (1. Start with their actual shares if there were no repudiation. – this is always the starting point.) 11. Take note that an heir who repudiates can never be represented. 12. Refer to the illustrations of Dean Navarro. Always start the computation as if no repudiation yet!
13. EFFECTS of PREDECEASE, INCAPACITY, DISINHERITANCE, or REPUDIATION in both TESTAMENTARY and INTESTATE SUCCESSION
CAUSE OF VACANCY Predecease Incapacity Disinheritance Repudiation
TESTAMENTARY SUCCESSION Legitime Free Portion 1. RR 1. A 2. IS 2. IS 1. RR 1. A 2. IS 2. IS 1. RR _ 2. IS IS A
INTESTATE SUCCESSION (IS) 1. RR 2. IS 1. RR 2. IS _ A
Summary: (A) In testamentary succession: (1) Legitime: (a) In case of predecease of an heir, there is representation if there are children or descendants; if none, the others inherit in their own right. (b) In case of incapacity, results are the same as in predecease. (c) In case of disinheritance, results are the same as in predecease.
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(d) In case of repudiation by an heir, the others inherit in their own right. (2) Disposable free portion: Accretion takes place when requisites are present; but if such requisites are not present, the others inherit in their own right.
(B) In intestate succession: (1) In case of predecease, there is representation if there are children or descendants; if none, the others inherit in their own right. (2) In case of incapacity, results are the same as in predecease. (3) In case of repudiation, there is always accretion.
September 19, 2009
1. CAPACITY TO SUCCEED BY WILL OR BY INTESTACY 2. Art. 1024. Persons not incapacitated by law may succeed by will or ab intestato. The provisions relating to incapacity by will are equally applicable to intestate succession. 3. Capacity to Succeed
It is the ability to inherit and retain property obtained mortis causa.
It is also termed passive testamentary capacity.
4. Requisite for Capacity to Inherit (a) It is essential to be either already living, or at least conceived at the moment the succession opens. •
In the case of the conceived child, Art. 41 must be complied with
•
For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. However, if the fetus had an intra‐uterine life or less than seven months, it is not deemed born if it dies within twenty‐four hours after its complete delivery from the maternal womb. (Art. 41)
(b) There is no exception to the rule enunciated in the first requisite, even if the law says “except in case or representation, when it is proper.” •
Reason: Even in case of representation, the representative must already be alive or at least
conceived at the time the succession opens. He himself must be capable of succeeding the decedent. (Art. 973) 5. Kinds of Incapacity to Succeed (a) ABSOLUTE – can never inherit from anybody regardless of circumstances. 24
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(b) RELATIVE – cannot inherit only from certain persons or certain properties, but can inherit from others or certain properties •
Note: There are three kinds of relative incapacity
1)
Because of possible undue influence. (Art. 1027 )
2)
Because of public policy and morality. (Art. 1028 read together with Art. 739 )
3)
Because of unworthiness. (Art. 1032 )
6. Non‐natural person can inherit. 7. Article 1026 – Dispositions in Favor of Entities
Some of the orgs referred to in this Article are juridical persons; others are not. In case of the latter, they are allowed to inherit, not because they have juridical existence, but because of this Article.
In case of juridical persons, it is not enough that they have been conceived by certain individuals; it is essential that they have complied with all the requirements for the existence of juridical persons.
8. Art. 1027. The following are incapable of succeeding: (1) The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; (2) The relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; (3) A guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid; (4) Any attesting witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; (5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; (6) Individuals, associations and corporations not permitted by law to inherit. 9. If several priest heard the confession of the testator, all of them are incapable to inherit and not necessarily the last priest. 10. Exception to (3) of Art. 1027 is if the guardian is his ascendant, descendant, brother, sister or spouse. 25
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11. Numbers (1) to (5) of Art. 1027 refer to RELATIVE INCAPACITY while (6) refers to ABSOLUTE INCAPACITY. 12. The basis of (1) to (5) of Art. 1027 is undue influence. 13. Legitime cannot be affected by Art. 1027 because legitime cannot be affected by undue influence. 14. Art. 1027 applies only to Testamentary Succession. 15. Wife of Priest or Minister can inherit. 16. Number (5) of Art. 1027; The physician, surgeon, nurse , health officer or druggist must actually took care the testator. 17. Refer to the illustration of Dean Navarro. Article 1027 is without prejudice to intestate succession. 18. Article 1028. The prohibitions mentioned in article 739, concerning donations inter vivos shall apply to testamentary provisions.
Incapacity by Reason of Public Morality
The following donations shall be void: (a) Those made between persons who are guilty of adultery or concubinage at the time of donation; (b) Those made between persons found guilty of the same criminal offense, in consideration thereof; (c) Those made to a public officer or his wife, descendants and ascendants, by reason of his office. 19. Article 1029
The diposition of the whole or part of his property for prayers and pious works for the benefit of his soul must be in general terms and without specifying its application.
20. Art. 1032. The following are incapable of succeeding by reason of unworthiness: (1) Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue; (2) Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants, or ascendants; (3) Any person who has accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found groundless;
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(4) Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have already taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation; (5) Any person convicted of adultery or concubinage with the spouse of the testator; (6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made; (7) Any person who by the same means prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will; (8) Any person who falsifies or forges a supposed will of the decedent.
21. Article 1032 = by reason of unworthiness; same grounds for disinheritance Important Points:
Take note that in (5), the law incapacitated the one who is convicted of adultery/concubinage but not the spouse
Next point, many of these grounds are grounds for disinheritance. •
S tried to kill his father who was convicted by final judgment. Before the death of X there was reconciliation. Can X inherit?
Ask one question, “did the testator apply the rule on disinheritance or the rules on unworthiness.”
Did X apply the rule on disinheritance? If not, apply Art. 1032.
If the testator invoked the rules on disinheritance, we have to apply the rules of disinheritance. Hence, under Article 922, once there is reconciliation X cannot be disinherited.
An express pardon is irrevocable.
22. Article 1034. When should incapacity be determined?
Article 777, Upon the death of the testator.
23. If the institution of legacy or device is subject to a condition, there are two moments to consider.
First moment, moment of death;
Second moment, at the time the condition is fulfilled. Otherwise the heir will not inherit.
Both must concur
24. Article 1039. Capacity to succeed is governed by the law of the nation of the decedent.
Note that capacity to inherit is not governed by the national law of the heirs, devisees, or legatees, but by the national law of the decedent. (This is true whether the succession be testate or intestate.) 27
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Because of this Article read together with Art. 16, four (4) things are governed by the national law of the decedent, namely: (a) Order of succession (b) Amount of successional rights (c) Intrinsic validity of the provisions of the will (d) Capacity to succeed
25. ACCEPTANCE and REPUDIATION
These can only be done after the death of the Testator, otherwise, it is premature.
26. Once there is acceptance or repudiation, the effects will retroact to the moment of the testator’s death. 27. As between acceptance and repudiation, the former is easier to do. 28. Acceptance may be express or implied.
Art. 1049. Acceptance may be express or tacit.
An express acceptance must be made in a public or private document. A tacit acceptance is one resulting from acts by which the intention to accept is necessarily implied, or which one would have no right to do except in the capacity of an heir. Acts of mere preservation or provisional administration do not imply an acceptance of the inheritance if, through such acts, the title or capacity of an heir has not been assumed.
Express – either public or private document.
29. The execution of acts of ownership is implied acceptance.
Article 1050, enumerates 3 acts of implied ownership. Article 1050. An inheritance is deemed accepted: (1) If the heir sells, donates, or assigns his right to a stranger, or to his co‐heirs, or to any of them; (2) If the heir renounces the same, even though gratuitously, for the benefit of one or more of his co‐ heirs; (3) If he renounces it for a price in favor of all his co‐heirs indiscriminately; but if this renunciation should be gratuitous, and the co‐heirs in whose favor it is made are those upon whom the portion renounced should devolve by virtue of accretion, the inheritance shall not be deemed as accepted.
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30. Repudiation
Art. 1051. The repudiation of an inheritance shall be made in a public or authentic instrument, or by
petition presented to the court having jurisdiction over the testamentary or intestate proceedings.
Public or authentic (document whose genuineness cannot be controverted) document or by judicial authorization.
31. Article 1052. Basic rights of Creditors.
When Creditors may Accept? (a) While rights may be waived, still waiver cannot be allowed, if among other things, it is prejudicial to a third person with a right recognized by law. (b) The creditors do not accept in their own name; they accept in the name of the heir (or devisee or legatee). (c) The Creditor cannot accept everything that has been repudiated, they can accept only to the extent they have been prejudiced. (d) Even if the creditors accept everything that has been repudiated, the renouncing heir is not considered as having accepted – he is still a renouncer, and cannot therefore be represented.
32. The creditors will not be allowed to accept in the name of the heir if they have not been prejudiced.
33. COLLATION
According to Dean Navarro, it means (1) addition, (2) imputation, and (3) actual restoration.
34. As used in the law of succession, collation has at least two (2) meanings: (a) First, it means “computing or adding certain values to the estate, and charging the same to the LEGTIME.” (Arts. 1061, 1062, 1063, 1064) (b) Secondly, it means “computing or adding certain values to the estate, and charging the same to the FREE PORTION.” (Arts. 1062, 1063). Conversely, the phrase “not collationable” can mean: 1) First, it should be computed or added, but it should be charged to the free portion (and not to the legitime). 2) Secondly, it should NOT even be computed or added to the estate, for it is not part of the same. (Art. 1067) 35. DE ROMA vs CA
If you are a compulsory heir and given property during the lifetime of the testator, said property must be given back to the mass of estate of the decedent.
Notwithstanding the donation is termed to be irrevocable it is subject to collation.
The SC held, “We agree with the respondent court that there is nothing in the above provisions expressly prohibiting the collation of the donated properties. As the said court correctly observed, the 29
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phrase "sa pamamagitan ng pagbibigay na di na mababawing muli" merely described the donation as "irrevocable" and should not be construed as an express prohibition against collation. The fact that a donation is irrevocable does not necessarily exempt the subject thereof from the collation required under Article 1061.” 36. General Rule is that all gratuitous dispositions made by the testator must be subject to collation.
Exception: Article 1067. SEMACO •
Expenses for support, education, medical attendance, even in extraordinary illness, apprenticeship, ordinary equipment, or customary gifts are not subject to collation.
•
These refer to the collation in the sense of addition,
•
In terms of education, only until high school.
37. Article 1068. Expenses incurred by the parents in giving their children a professional, vocational or other career shall not be brought to collation unless the parents so provide, or unless they impair the legitime; but when their collation is required, the sum which the child would have spent if he had lived in the house and company of his parents shall be deducted therefrom. 38. Article 1068
Gen Rule is charge it against the free portion
It will not be charged to the legitime rather in the free portion.
You do not add it to the net estate.
39. Na ICU ka, even if the bill reached P3M, not counted. No collation 40. Refer to the illustration of Dean Navarro. 41. Fines and indemnities paid by the parents– legitime yan! 42. Donations given to daughter‐in‐laws
Considered as donation to a stranger. Hence, charged to free portion.
If given to both spouse – half will be charged to the legitime of the spouse.
In‐laws are never considered as heirs.
43. Article 1070. Wedding Gifts
The wedding gifts here, although really donations, are not chargeable to the legitime in view of the sentimental importance of a wedding.
Nevertheless, they may be reduced if they exceed (for each child) one‐tenth of the free disposal. This is to prevent abuse and extravagance. 30
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It will be charged in the free portion as long as it does not exceed 10% of the free portion, otherwise the excess will be charged against the legitime of the spouse.
44. X has 4 legitimate children A B C and D. D is married to W. B has a son E. The net estate is P500K. During the lifetime of the testator, he made gratuitous disposition: P300K
A (for medical expenses)
P30K
B (for election expenses)
P10K
E
P20K
W (bracelet)
P40k
D (wedding gift)
P10K
C (for college)
(ring)
P300K (medical expenses) not subject to collation, thus, only P110K is the total amount to collate.
Net Estate is equal to P500k + P110 which is equal P610k
Legitime then is equal to P305k which is half of the Net estate (P610k)
Then determine the legitime of each heir
Then Charging either to legitime or free portion
The Medical expenses not included Election – legitime Ring – free portion Bracelet – free portion Wedding gift – 30,500 free portion, 9,500 to the legitime of D College – Free portion *Refer to the illustration of Dean Navarro for the computation
45. PARTITION and DISTRIBUTION of the ESTATE 46. Article 1078. Where there are two or more heirs, the whole estate of the decedent is, before its partition, owned in common by such heirs, subject to the payment of debts of the deceased.
Example: T has two children A and B. If T dies, A and B will be co‐heirs of the whole estate, subject of
course to the payment of debts. •
Principle: Co‐heirs are co‐owners
47. MANG‐OY vs CA
The Supreme Court considered void wills as valid partitions 31
AUF LAW BATCH 2 MAGIC NOTES
48. A void will can be a valid partition if the following concur: a) if it is in fact a partition; b) the heirs and other beneficiaries must be legal heirs (because partition is not a mode of acquiring ownership)
49. Effects of partition, take note
Generally the heirs warrant to each other title and quality of the properties assigned to them, the action to enforce warranty is 10 years from the cause of action accrues.
50. Article 1104. A partition made with preterition of any of the compulsory heirs shall not be rescinded, unless it be proved that there was bad faith or fraud on the part of the other persons interested; but the latter shall be proportionately obliged to pay to the person omitted the share which belongs to
Preterition of Compulsary Heirs in the Partition a) This involves a preterition of compulsory heirs, not in the institution, but in the partition b) Such preterition in the partition will NOT cause rescission except if there was: 1) Fraud 2) Bad faith
51. VIADO NON vs CA
The exclusion of petitioner Delia Viado, alleged to be a retardate, from the deed of extrajudicial settlement verily has had the effect of preterition. This kind of preterition, however, in the absence of proof of fraud and bad faith, does not justify a collateral attack on Transfer Certificate of Title 373646.
The relief, as so correctly pointed out by the Court of Appeals, instead rests on Art. 1104 to the effect that where the preterition is not attended by bad faith and fraud, the partition shall not be rescinded but the preterited heir shall be paid the value of the share pertaining to her. Again, the appellate court has thus acted properly in ordering the remand of the case for further proceedings to make the proper valuation of the Isarog property and ascertainment of the amount due to petitioner Delia Viado.
52. Article 1105. A partition which includes a person believed to be an heir, but who is not, shall be void only with respect to such person.
Intrusion of a stranger in the Parition a) Instead of a preterition here, there is intrusion b) Nevertheless, the partition is not completely void c)
Only the part corresponding to the non‐heir is VOID
d) Those who are liable to get shares, although they are not entitled thereto, must give them to one who is an heir and lawfully entitled to receive the same 53. EFFECTS OF INCLUSION OF INTRUDER IN PARTITION: 1. Between a true heir and several mistaken heirs – partition is VOID. 2. Between several true heirs and a mistaken heir – transmission to mistaken heir is VOID. 32