Succession Memory Aid Ateneo

C I V I L L A W SUCC SUCCES ESSI SION ON MEMO MEMORY RY AID AID

A TENEO CENTRAL BAR OPERATIONS 2002

DEFINITION OF SUCCESSION: -

It 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

KINDS OF SUCCESSION:

1. Testamentary – that which results from the designation of an heir, made in a will executed in the form prescribed by law 2. Legal or Intestate – that which takes place by operation of law in the absence of a valid will 3.

Mixed – Mixed – that which is effected partly by will and partly by operation of law

KINDS OF HEIRS:

1. Compulsory – thos those e who who succe succeed ed by force force of law to some some porti portion on of the inhe inherit ritan ance, ce, in an amoun amountt prede predeter termin mined ed by law, law, of which which they they cann cannot ot be deprived by the testator, except by a valid disinheritance 2. Voluntary or Testamentary Testamentary – those who are instituted by the testator in his will, to succeed to the portion of the inheritance of which the testator can freely dispose 3. Legal or Intestate – those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will DEFINITION OF WILL - It is an act - whereby a person is permitted - with the formalities prescribed by law - to control to a certain degree - the disposition of his estate - to take effect after his death TESTAMENTARY CAPACITY: 1.

All All per perso sons ns who who are are not not exp expre ress ssly ly prohi rohibi bite ted d by by law law

2.

18 years old and above

3.

Of so sound mi mind, at at th the titime of its its executi cutio on

KINDS OF WILLS:

1. Notarial – Notarial – an ordinary or attested will 2. Holographic – Holographic – a handwritten will COMMON REQUIREMENTS TO BOTH WILLS: 1.

In writing

2.

In a language or dialect known to the testator

1

C I V I L L A W SUCCESSION MEMORY AID


REQUISITES FOR VALID NOTARIAL WILL: 1. In writing 2. In a language or dialect known to the testator 3. Subscribed at the end by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction 4. Attested & subscribed by three or more credible witnesses in the presence of the testator and of one another 5. Each and every page, except the last, must be signed by the testator or by the person requested by him to write his name, and by the instrumental witnesses of the will, on the left margin 6. Each and every page of the will must be numbered correlatively in letters placed on the upper part of each page 7. It must contain an attestation clause, stating the following: a. The number of pages used upon which the will is written b. The fact that the testator signed the will and every page, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses c. All the instrumental witnesses witnessed and signed the will and all its pages in the presence of the testator and of one another 8. It must be acknowledged before a notary public by the testator and the witnesses ADDITIONAL REQUISITES FOR A NOTARIAL WILL IF THE TESTATOR BE DEAF OR A DEAF-MUTE: 1 2

1. Testator must personally read the will, if able to do so; 2. Otherwise, he shall designate two persons to read it and communicate to him, in some practicable manner, its contents

ADDITIONAL REQUISITE FOR A NOTARIAL WILL IF THE TESTATOR BE BLIND: The will shall be read to the testator twice – 1. Once by one of the subscribing witnesses 2. Once by the notary public before whom the will is acknowledged REQUISITES FOR HOLOGRAPHIC WILL: 1. In writing 2. In a language or dialect known to the testator 3. Entirely written, dated, and signed by the hand of the testator himself AMENDING A WILL:

1. Notarial – only through a codicil 2. Holographic – in three ways

2



a. Dispositions may be added below the signature, PROVIDED that said dispositions are also dated and signed, and everything is written by the hand of the testator himself b. Certain dispositions or additional matter may be suppressed or inserted PROVIDED that said cancellation is signed by the testator and written by the hand of the testator himself c. Through a codicil which may either be notarial or holographic EFFECT OF INSERTION ON THE VALIDITY OF A HOLOGRAPHIC WILL: (Tolentino)

1. If made after the execution of the will, but without the consent of the testator , such insertion is considered as not written because the validity of the will cannot be defeated by the malice or caprice of a third person 2. If the insertion after the execution of the will was with the consent of the testator , the will remains valid but the insertion is void 3. If the insertion after the execution is validated by the testator by his signature thereon, then the insertion becomes part of the will, and the entire will becomes void, because of failure to comply with the requirement that it must be wholly written by the testator 4. If the insertion made by a third person is made contemporaneous to the execution of the will , then the will is void because it is not written entirely by the testator QUALIFICATIONS OF WITNESSES TO A NOTARIAL WILL: 1. Of sound mind 2. Of the age of 18 years or more 3. Not blind, deaf or dumb 4. Able to read and write 5. Domiciled in the Philippines 6. Have not been convicted of falsification of a document, perjury or false testimony DEFINITION OF A CODICIL: -

It is a supplementary or addition to a will made after the execution of the will and annexed to be taken as a part thereof by which any disposition in the original will may be explained, added to or altered

REQUISITES FOR INCORPORATION BY REFERENCE: 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 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

3



REVOKING A WILL: 1. By implication of law 2. By the execution of a will, codicil or other writing executed as provided in case of wills 3. By burning, tearing, canceling, 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 GROUNDS FOR DISALLOWANCE OF A WILL: 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 should be his will at the time of affixing his signature thereto DEFINITION OF INSTITUTION OF HEIR: It 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 –

REQUISITES FOR A VALID INSTITUTION OF HEIR: 1. Designation in will of person/s to succeed 2. Will specifically assigns to such person an inchoate share in the estate 3. The person so named has capacity to succeed 4. The will is formally valid 5. No vice of consent is present 6. No preterition results from the effect of such will THREE PRINCIPLES IN THE INSTITUTION OF HEIRS:

1. Equality – heirs who are instituted without a designation of shares inherit in equal parts 2. Individuality – heirs collectively instituted are deemed individually named unless a contrary intent is proven 3. Simultaneity – when several heirs are instituted, they are instituted simultaneously and not successively

4



RULES REGARDING A PERSON’S RIGHT TO DISPOSE OF HIS ESTATE: 1. If one has no compulsory heirs: a. He can give his estate to any person qualified to inherit under him b. However, he must respect restrictions imposed by special laws 2. If one has compulsory heirs: a. He can give only the disposable portion to strangers b. Legitimes of compulsory heirs must be respected CONCEPT OF PRETERITION: 1. in the will

There must be an omission of one, some or all of the heir/s

2. The omission must be that of a COMPULSORY HEIR 3. Compulsory heir omitted must be of the DIRECT LINE 4. The omitted compulsory heir must be LIVING at the time of testator’s death or must at least have been CONCEIVED before the testator’s death EFFECTS OF PRETERITION: 1. The institution of heir is annulled 2. Devises and legacies shall remain valid as long as they are not inofficious 3. If the omitted compulsory heir should die before the testator, the institution shall be effectual, without prejudice to the right of representation DEFINITION OF SUBSTITUTION: -

It is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted

CLASSES IF SUBSTITUTION:

1. Vulgar or Simple – the testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should a. die before him (PREDECEASE) b. should not wish, (RENOUNCE) or c. should be incapacitated to accept the inheritance (INCAPACITATED)

i.

Brief or Compendious – two or more persons may be substituted for one; and one person for two or more heirs

ii.

Reciprocal – if heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than

5



one substitute, they shall have the same share in the substitution as in the institution 2. Fideicommissary Substitution - if the testator institutes an heir with an obligation to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or fiduciary heir, the one to receive the property is the fideicommissary or second heir REQUISITES FOR A FIDEICOMMISSARY SUBSTITUTION: 1. A fiduciary or first heir instituted entrusted with the obligation to preserve and to transmit to a fideicommissary substitute or second heir the whole or part of the inheritance 2. Such substitution must not go beyond one degree from the heir originally instituted 3. The fiduciary or first heir and the second heir are living at the time of the death of the testator 4. The fideicommissary substitution must be expressly made 5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime DEFINITION OF LEGITIME: It is that part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs called compulsory heirs CLASSES OF COMPULSORY HEIRS:

1. Primary – those who have precedence over and exclude other compulsory heirs a. Legitimate children and descendants (legitimate), with respect to their legitimate parents and ascendants

2. Secondary – those who succeed only in the absence of the primary heirs a. Legitimate parents and ascendants (legitimate), with respect to their legitimate children and descendants

3. Concurring – those who succeed together with the primary or the secondary compulsory heirs a. Widow or widower (legitimate) b. Illegitimate children and descendants (legitimate or illegitimate)

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SUMMARY OF LEGITIMES OF COMPULSORY HEIRS: SURVIVING RELATIVES

LEGITIMATE CHILDREN &

SURVIVING

ILLEGITIMATE

SPOUSE

CHILDREN

DESCENDANTS

Legitimate children alone 1 legitimate child surviving spouse Legitimate children Surviving spouse

½ (divided by the # of children) ½

¼

½ (divided by no. of children)

Same as the share @ legit child

½

1 legitimate child surviving spouse illegitimate children

½

¼ (preferred)

½ of the share of @ legit child

2 or more legitimate children surviving spouse Illegitimate children

½ (divided by no. of children)

Same as the share of @ legit child


PARENTS


½ ¼

¼

Legitimate parents Surviving spouse Illegitimate children Illegitimate children alone

1/8

Illegitimate children Surviving spouse Surviving spouse alone

1/3

Illegitimate parents alone

ILLEGITIMATE

ASCENDANTS

Legitimate children Illegitimate children

Legitimate parents alone Legitimate parents Illegitimate children Legitimate parents and Surviving spouse

LEGITIMATE PARENTS &

½

½

¼

½

½ (divided by no. of children) 1/3 (divided by no. of children)

½ or 1/3 if marriage in articulo mortis ½

7



Illegitimate ¼ parents Surviving spouse REMEDY OF COMPULSORY HEIR IN CASE OF IMPAIRMENT OF LEGITIME:

¼

1. If the impairment is total , then there may be preterition if the compulsory heir preterited is either an ascendant or descendant. Article 854 would come into play (annulment of institution of heir and reduction of devises and legacies) 2.

If the impairment is partial , then the compulsory heir is entitled to completion of legitime under Article 906

3. If the impairment is thru donation , then remedy is collation. CONCEPT OF RESERVA TRONCAL -

The ascendant who inherits from his descendant

-

any property which the latter may have acquired by gratuitous title

-

from another descendant, 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

REQUISITES (as provided in Chua v. CFI [1977] & reiterated in Gonzales v. CFI [1981]) 1) that the property was acquired by a descendant from an ascendant or from a brother or sister by gratuitous title 2) that said descendant died without an issue

3) that the property is inherited by another ascendant by operation of law 4) that there are relatives within the 3 rd degree belonging to the line from which said property came DEFINITION OF DISINHERITANCE It is the act by which the testator, for just cause, deprives a compulsory heir of his right to the legitime. DIFFERENCES BETWEEN PRETERITION AND DISINHERITANCE: DISINHERITANCE Express deprivation of legitime

PRETERITION Tacit deprivation of legitime

Always voluntary

May also be voluntary but is presumed to be involuntary (as it is an omission to mention an heir or though mentioned, is not instituted as an heir)

Legal cause is present

Presumed by law to be a mere oversight

Even a compulsory heir may be totally excluded

Compulsory heir is merely restored to his legitime

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REQUISITES FOR A VALID DISINHERITANCE: 1. Heir disinherited must be designated by name or in such a manner as to leave no room for doubt as to who is intended 2. It must be for a cause designated by law 3. It must be made in valid will 4. It must be made expressly, stating the cause in the will itself 5. The cause must be certain and true, and must be proved by the interested heir if the person disinherited should deny it 6. It must unconditional 7. It must be total SUMMARY OF CAUSES OF DISINHERITANCE: GROUNDS FOR DISINHERITANCE

CHILDREN / DESCENDANTS *

PARENTS /

SPOUSE

UNWORTHINESS

ASCENDANTS

*

*

*

1

Guilty/convicted of attempt against life of testator/spouse/ ascendant/descend ant

2

Accused testator/decedent of crime punishable by imprisonment of more than 6 years, found groundless, false

*

*

*

*

3

Causes testator/decedent to make will or change one by fraud, violence, intimidation, or undue influence

*

*

*

*

4

Unjustified refusal to support testator

*

*

*

5

Convicted of adultery or concubinage with spouse of testator/decedent

*

*

6

Maltreatment of testator by word and deed

*

7

Leading a dishonorable or disgraceful life

*

*

9


8

Conviction of crime which carries penalty of civil interdiction

9

Abandonment of children or inducing children to live corrupt and immoral life or attempted against virtue


*

*

10 Loss of parental authority

*

11

Attempt by one parent against life of the other UNLESS there is reconciliation between parents

*

12

Spouses given cause for legal separation

*

*

*

13 Failure to report violent death of decedent within one month, unless authorities have already taken action

*

14 Force, violence, intimidation or undue influence to prevent another from making a will or revoking one already made or who supplants or alters the latter’s will

*

15 Falsifies or forges a supposed will of the decedent

*

CAUSES OF VACANCY IN SUCCESSION:

1. Disinheritance - The testator creates it himself 2. Repudiation - The heir does something 3. Incapacity/Predecease - Something happens to the heir HOW VACANCIES ARE FILLED:

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1. Substitution 2. Representation 3. Accretion ORDER OF PAYMENT IN CASE ESTATE IS INSUFFICIENT TO COVER ALL LEGACIES AND DEVICES: 1. Remuneratory legacies or devises 2. Legacies or devises declared by the testator to be preferential 3. Legacies for Support 4. Legacies for Education 5. Legacies or devises of a specific, determinate thing which forms a part of the estate 6. All others pro-rata CAUSES FOR LEGAL OR INTESTATE SUCCESSION:

If a person dies without a will If a person dies with a void will If a person dies with a will which has subsequently lost its validity 1. When the will does not institute an heir to, or dispose of all the property belonging to the testator (legal succession shall take place only with respect to the property of which the testator has not disposed) 2. If the suspensive condition attached to the institution of the heir does not happen or is not fulfilled 3. If the heir dies before the testator, 4. If the heir repudiates the inheritance, there being no substitution, and no right of accretion takes place 5. When the heir instituted is incapable of succeeding, except in cases provided in the Code FUNDAMENTAL SUCCESSION:

UNDERLYING

PRINCIPLES

IN

LEGAL

OR

INTESTATE

1. Rule of Proximity – the relative nearest in degree excludes the farther one 2. Rule of Equal Division – the relatives who are in the same degree shall inherit in equal shares DEFINITION OF RIGHT OF REPRESENTATION: -

It is a right created by fiction of law by virtue of which the representative is raised to the place and degree of the person represented and acquires the rights which the latter would have of he were living or if he would have inherited

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ORDER OF LEGAL OR INTESTATE SUCCESSION: LEGITIMATE CHILD Legitimate child and legitimate descendants

ILLEGITIMATE CHILD legitimate child and legitimate descendants

ADOPTED CHILD legitimate child and legitimate descendants

2

Legitimate parents and legitimate ascendants

illegitimate children and legitimate or illegitimate descendants

illegitimate children and legitimate or illegitimate descendants

3

Illegitimate children and legitimate or illegitimate descendants

illegitimate parents

4

Surviving spouse

surviving spouse

legitimate or illegitimate parents and legitimate ascendants, adoptive parents surviving spouse

5

Legitimate siblings, nephews, nieces

illegitimate siblings, nephews, nieces

siblings, nephews, nieces

6

Legitimate collateral relatives

State

State

7

State

1

CONCURRENCE IN LEGAL OR INTESTATE SUCCESSION INTESTATE HEIR Legitimate children and Legitimate descendants

EXCLUDES Ascendants, collaterals and state

EXCLUDED B Y No one

CONCURS WITH Surviving spouse Illegitimate children

Illegitimate children and Descendants

Illegitimate parents, collaterals and state

No one

Legitimate parents and legitimate ascendants

Collaterals and state

Legitimate children

Surviving spouse Legitimate children and legitimate parents Illegitimate children and surviving spouse

Illegitimate parents

Collaterals and state

Surviving spouse

Collaterals other than siblings, nephews and nieces

Legitimate children and illegitimate children No one

Siblings, nephews nieces

All other collaterals and state

Legitimate children, illegitimate children, Legitimate parents and illegitimate parents

Surviving spouse

Other collaterals within 5th degree

Collateral remoter in degree and state

Legitimate children Illegitimate children Legitimate parents Illegitimate parents and Surviving spouse

Collaterals in the same degree

State

No one

Everyone

No one

Surviving spouse

Legitimate children Illegitimate children Legitimate parents and Illegitimate parents

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A MORE DETAILED SUMMARY OF INTESTATE SHARES: 1. LEGITIMATE CHILDREN AND LEGITIMATE DESCENDANTS ALONE INTESTATE HEIR

SHARE AS LEGITIME ½

SHARE AS FREE DISPOSAL ½

TOTAL INTESTATE SHARE 1

Legitimate children TOTAL

½

½

1

2. ONE LEGITIMATE CHILD AND SURVIVING SPOUSE INTESTATE HEIR

SHARE AS LEGITIME

SHARE AS FREE DISPOSAL

TOTAL INTESTATE SHARE

Legitimate child

½

Surviving spouse

¼

¼

½

TOTAL

¾

¼

1

½

3. LEGITIMATE CHILDREN AND SURVIVING SPOUSE INTESTATE HEIR

SHARE AS LEGITIME

Legitimate children

½

Surviving spouse

Same as share of @ legitimate child

TOTAL

Varies on no. of children

SHARE AS FREE TOTAL INTESTATE SHARE DISPOSAL Remaining portion of Whole estate divided estate after paying equally between total legitimes number of children plus the surviving spouse

Legitimes to be divided equally between total no. of children plus the surviving spouse

No. of children plus the surviving spouse (see above)


1

4. LEGITIMATE CHILDREN AND ILLEGITIMATE CHILDREN INTESTATE HEIR

SHARE AS LEGITIME


Legitimate children

½

Illegitimate children

½ share of @ legitimate child

Legitimes to be divided by the ratio of 2 for @ legitimate child, 1 for @ illegitimate child

TOTAL




Remaining portion of Whole estate divided estate after paying by the ratio of 2:1 for legitimes each legitimate child as compared to the illegitimate child

1 for @ illegitimate child provided that legitimes wouldn’t be impaired

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5. ONE LEGITIMATE CHILD, ILLEGITIMATE CHILD, AND SURVIVING SPOUSE INTESTATE HEIR

SHARE AS LEGITIME

SHARE AS FREE TOTAL INTESTATE SHARE DISPOSAL Remaining portion of Whole estate divided estate after paying by the ratio of 2 @ legitimes to be legitimate child divided by the ratio of 2:1 for @ legitimate child and @ illegitimate child, respectively

Legitimate child

½

Illegitimate child

½ share of @ legitimate child

1 for @ illegitimate child (see above)

1 for @ illegitimate child

Surviving spouse

¼

Same share as a legitimate child

Legitimes wouldn’t be impaired

TOTAL

Varies depending on no. of illegitimate children


1

6. LEGITIMATE CHILDREN, ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE INTESTATE HEIR

SHARE AS LEGITIME

Legitimate children

½


½ share of @ legit child



Surviving spouse

¼

Same share as a legitimate child, provided legitimes are not impaired

Same share as a legitimate child, provided legitimes are not impaired

TOTAL



1

SHARE AS FREE DISPOSAL ½ ½


7. LEGITIMATE PARENTS ALONE 8. INTESTATE HEIR SHARE AS LEGITIME Legitimate parents TOTAL

½ ½

SHARE AS FREE DISPOSAL Remaining portion of estate, if any after paying legitimes to be divided by the ratio of 2 for @ legitimate child

TOTAL INTESTATE SHARE Whole estate divided by the ratio of 2:1 for @ legitimate child and illegitimate child respectively

1 1

9. LEGITIMATE PARENTS AND ILLEGITIMATE CHILDREN 10. INTESTATE HEIR SHARE AS LEGITIME SHARE AS FREE TOTAL INTESTATE SHARE DISPOSAL Legitimate parents ½ ½ Illegitimate children ¼ ¼ ½ TOTAL

¾

¼

1 14



11. LEGITIMATE PARENTS AND SURVIVING SPOUSE INTESTATE HEIR

SHARE AS LEGITIME



Legitimate parents

½

Surviving spouse

¼

¼

½

TOTAL

¾

¼

1

½

12. LEGITIMATE PARENTS, SURVIVING SPOUSE AND ILLEGITIMATE CHILDREN INTESTATE HEIR

SHARE AS LEGITIME

Legitimate parents

½

Surviving spouse

1/8


¼

TOTAL

7/8


TOTAL INTESTATE SHARE ½

1/8

¼ ¼

1/8

1


1

13. ILLEGITIMATE CHILDREN ALONE INTESTATE HEIR

SHARE AS LEGITIME

Illegitimate children alone TOTAL

½


½

½

1

14. ILLEGITIMATE CHILDREN AND SURVIVING SPOUSE INTESTATE HEIR

SHARE AS LEGITIME


1/3

SHARE AS FREE DISPOSAL 1/6

Illegitimate children Surviving spouse

1/3

1/6

½

TOTAL

2/3

1/3

1

INTESTATE HEIR

SHARE AS LEGITIME


Surviving spouse

½ or 1/3

SHARE AS FREE DISPOSAL ½ or 1/3

TOTAL

½ or 1/3

½ or 1/3

1


1

½

15. SURVIVING SPOUSE

1

16. ILLEGITIMATE PARENTS ALONE INTESTATE HEIR

SHARE AS LEGITIME

Illegitimate parents

½


TOTAL

½

½

1

15



17. ILLEGITIMATE PARENTS AND SURVIVING SPOUSE INTESTATE HEIR

SHARE AS LEGITIME


¼

SHARE AS FREE DISPOSAL ¼

Illegitimate parents Surviving spouse

¼

¼

½

TOTAL

½

½

1


1

½

18. SIBLINGS, NEPHEWS AND NIECES ALONE INTESTATE HEIR

SHARE AS LEGITIME

Siblings, nephews, nieces TOTAL

½


½

½

1

19. SURVIVING SPOUSE, SIBLINGS, NEPHEWS AND NIECES INTESTATE HEIR

SHARE AS LEGITIME

Surviving spouse

½

Siblings, nephews, nieces TOTAL

½


TOTAL INTESTATE SHARE ½

½

½

½

1

DEFINITION OF ACCRETION: -

It 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

WHO ARE INCAPABLE OF SUCCEEDING: 1. 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. Relatives of such priest or minister of the gospel within the 4 th degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong 3. 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; EXCEPT if the guardian is his ascendant, descendant, brother, sister, or spouse 4. Attesting witness to execution of will, their spouses, parents, children or any one claiming under such witness, spouse, parents or children 5. 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

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VALIDITY AND EFFECT OF LEGACY/DEVISE General Rule: Conveys only interest or part owned by testator Thing owned in part by Exception: if testator otherwise provides – testator (Article 929) a. He may convey more than what he owns - the state shld try to acquire the part or interest owned by other parties. If other parties are unwilling to alienate, the estate should give the legatee/devisee the monetary equivalent (analogy with Article 931) b. He may convey less than what he owns (Article 794) Thing owned by another General Rule: (Articles 930-931)

a. If testator ordered acquisition of the thing - the order should be complied with. If the owner is unwilling to part with the thing, the legatee/devisee should be given the monetary equivalent

b. If testator erroneously believed that the thing belonged to him - legacy/device is void Exception: if testator acquire the thing onerously or gratuitously after making of the disposition, disposition is validated

c. If testator knew that the thing did not belong to him but did not order its acquisition - code is silent but disposition should be considered valid - there is an implied order to acquire and doubts must be resolved in favor of intestacy

Thing already owned to the legatee/devisee (Articles 932-933)

a. If thing already belonged to legatee/devisee at time of execution of will – legacy/devise is void b. If thing was owned by another person at time of making the will and thereafter it is acquired by legatee/devisee – 1. If testator erroneously believed that he owned the thing – legacy /devise is void 2.

Legacy/Devise to remove an encumbrance over a thing belonging to testator (Article 932 par2)

If testator was not in error -

i. If thing was acquired onerously by L/D – L/D entitled to be reimbursed ii. If thing was acquired gratuitously by L/D – nothing is due iii. If thing was owned by testator at time will was made and L/D acquired the thing from him thereafter – law is silent *Balane – L/D deemed revoked *Tolentino – no intention to revoke (BUT if the testator has not alienated the thing directly to the L/D, but to a 3 rd person and the former just acquired it from the latter, there is an intention to revoke) Valid, if the encumbrance can be removed for a consideration

17



Legacy/Devise of a The encumbrance must be removed by paying the debt unless the thing pledged or testator intended otherwise mortgaged (Article 934) CONCEPT OF COLLATION: To collate is to bring back or to return to the hereditary mass, in fact or by fiction, property which came from the estate of the decedent, during his lifetime, but which the law considers as an advance from the inheritance. It is the act by virtue of which, the persons who concur in the inheritance bring back to the common hereditary mass the property which they have received from him, so that a division may be effected according to law and the will of the testator. CONCEPT OF PARTITION: -

it is the separation, division and assignment of a thing held in common among those to whom it may belong the thing itself may be divided, or its value

IMPORTANT PERIODS TO REMEMBER: 1 month or less before making a will

Testator, if publicly known to be insane, burden of proof is on the one claiming validity of the will

20 years

Maximum period testator can prohibit alienation of dispositions

5 years from delivery to the State

To claim property escheated to the State

1 month

To report knowledge of violent death of decedent lest he be considered unworthy

5 years from the time disqualified Action for declaration of incapacity & for person took possession recovery of the inheritance, devise or legacy 30 days from issuance of order of Must signify acceptance/repudiation distribution otherwise, deemed accepted 1 month form written notice of sale

Right to repurchase hereditary rights sold to a stranger by a co-heir

10 years

To enforce warranty of title/quality of property adjudicated to co-heir from the time right of action accrues

5 years from partition

To enforce warranty of solvency of debtor of the estate at the time partition is made

4 years form partition

Action for rescission of partition on account of lesion

18

Succession Memory Aid Ateneo

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