Succession PDF

SUCCESSION SUCCESSION  A mode of acquisition by virtue of which the property, rights and obligations to the extent of the valueof the inheritance, of a person are transmitted through his death to another or others either by his will or by operation of law. (Art. 774) Kinds: 1. Testamentary or Testacy (by will); 2. Legal or intestacy (by operation of law based on the decedent’s presumed will); 3. Mixed (Partly Testamentary and Legal); and 4. Partition inter vivos (to a certain degree). Elements: 1. DECEDENT (subjective element) 2. SUCCESSORS (subjective element) a. Heirs - those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation of law 1) Voluntary – those instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose. 2) Compulsory or Forced – those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, known as the legitime. 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. b. Devisees or legatees - persons to whom gifts of real or personal property are respectively given by virtue of a will NOTE: 1. 2. 3. 4. The distinctions between heirs and devisees/legatees are significant in these cases: Preterition (pretermission) Imperfect disinheritance After-acquired properties Acceptance or non-repudiation of the successional rights. 3. DEATH OF THE DECEDENT (casual element)  Moment when rights to succeed are transmitted (Art 777)  However, a person may be “presumed” dead for the purpose of opening his succession (see rules on presumptive death). In this case, succession is only of provisional character because there is always the chance that the absentee may still be alive. 4. Inheritance (objective element); NOTE: Whatever may be the time when actual transmission takes place, succession takes place in any event at the moment of the decedent’s death. (Lorenzo vs. Posadas 64 Phil 353) SUCCESSION Refers to the legal mode by which inheritance is transmitted to the persons entitled to it INHERITANCE Refers to the universality or entirety of the property, rights and obligations of a person who died Inheritance includes: 1. PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATH General rules on rights and obligations extinguished by his death a) Rights which are purely personal are by their nature and purpose intransmissible for they are extinguished by death (e.g. those relating to civil personality, family rights, discharge of office). b) Rights which are patrimonial or relating to property are generally part of inheritance as they are not extinguished by death. c) Rights of obligations are by nature transmissible and may constitute part of inheritance both with respect to the rights of the creditor and as regards to the obligations of the debtor. 2. ALL WHICH HAVE ACCRUED THERETO SINCE THE OPENING OF SUCCESSION (Article 781 Civil Code) I. TESTAMENTARY SUCCESSION A. CONCEPT WILL - 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 (Art. 783) NOTE: Thus, a document that does not purport to dispose of one’s estate either by the institution of heirs or designation of devisees/legatees or, indirectly, by effecting a disinheritance, is not to be governed by the law on testamentary succession but by some other applicable laws. Kinds of Wills: 1. Notarial or ordinary 2. Holographic Characteristics of a Will: 1. UNILATERAL 2. STRICTLY PERSONAL ACT - The disposition of property is solely dependent upon the testator. NOTE: The following acts MAY NOT be left to the discretion of a third person: (Article 785, 787 Civil Code) duration or efficacy of the designation of heirs, devisees or legatees; determination of the portions which they are to take, when referred to by name; and determination of whether or not the testamentary disposition is to be operative. NOTE: However, the following acts MAY be entrusted to a third person: (Article 786 Civil Code) a. distribution of specific property or sums of money that he may leave in general to specified classes or causes; and b. designation of the persons, institutions or establishments to which such property or sums are to be given or applied. 3. FREE AND VOLUNTARY ACT – Any vice affecting the testamentary freedom can cause the disallowance of the will. 4. FORMAL AND SOLEMN ACT – The formalities are essential for the validity of the will. 5. ACT MORTIS CAUSA 6. AMBULATORY AND REVOCABLE DURING THE TESTATOR’S LIFETIME 7. INDIVIDUAL ACT – Two or more persons cannot make a single joint will, either for their reciprocal benefit or for another person. However, separate or individually executed wills, although containing reciprocal provisions (mutual wills), are not prohibited, subject to the rule on disposicion captatoria. 8. DISPOSITION OF PROPERTY B. INTERPRETATION OF WILLS (ARTS. 788-792) The testator’s intent (animus testandi), as well as giving effect to such intent, is primordial. It is sometimes said that the supreme law in succession is the intent of the testator. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. In case of doubt, that interpretation by which the disposition is to be operative shall be preferred. That construction is to be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rules of law. Kinds of Ambiguities: (Article 786) 1. LATENT OR INTRINSIC AMBIGUITIES – that which does not appear on the face of the will and is discovered only by extrinsic evidence. 2. PATENT OR EXTRINSIC AMBIGUITIES – that which appears on the face of the will itself NOTES:  There is no distinction between patent and latent ambiguities, in so far as the admissibility of parol or extrinsic evidence to aid testamentary disposition is concerned.  Extrinsic evidence to explain ambiguities in a will cannot include oral declarations of the testator as to his intention.  The validity of a will as to its form depends upon the observance of law in force at the time it is made. (Art. 795).  If a law different from the law in force at the time of the execution of the will goes into effect before or after the death of the testator, such a law shall not affect the validity of the will, provided that such will was duly executed In accordance with the formalities prescribed by law in force at the time it was made. AFTER-ACQUIRED PROPERTY (Art. 793) Gen. Rule: Property acquired during the period between the execution of the will and the death of the testator is NOT included among the property disposed of. Exception: When a contrary intention expressly appears in the will NOTE: This rule applies only to legacies and devises and not to institution of heirs. C. TESTAMENTARY CAPACITY – refers to the ability as well as the power to make a will. - must be present at the time of the execution of the will. Requisites: 1. At least 18 years of age 2. Of sound mind, i.e., the ability to know: a. the nature of the estate to be disposed of; b. the proper objects of his bounty; and c. the character of the testamentary act. NOTE: The law presumes that the testator is of sound mind, UNLESS: a. he, one month or less, before making his will, was publicly known to be insane; or b. was under guardianship at the time of making his will. (Torres and Lopez de Bueno vs. Lopez 48 Phil 772) In both cases, the burden of proving sanity is cast upon proponents of the will. Effect of Certain Infirmities: 1. mere senility or infirmity of old age does not necessarily imply that a person lacks testamentary capacity; 2. physical infirmity or disease is not inconsistent with testamentary capacity; 3. persons suffering from idiocy (those congenitally deficient in intellect), imbecility (those who are mentally deficient as a result of disease), and senile dementia (peculiar decay of the mental faculties whereby the person afflicted is reduced to second childhood) do not possess the necessary mental capacity to make a will; 4. an insane delusion which will render one incapable of making a will may be defined as a belief in things which do not exist, and which no rational mind would believe to exist; 5. if the insane delusion touches to subject matter of the will, testamentary disposition is void. 6. a deaf-mute and blind person can make a will (i.e. Art. 807-808). A blind man with a sound and disposing mind can make a holographic will. 7. an intoxicated person or person under the influence of drugs may make a will as there is no complete loss of understanding. Exception: where the testator has used intoxicating liquor or drugs excessively to such an extent as to impair his mind, so that at the time the will is executed, he does not know the extent and value of his property, or the names of persons who are the natural objects of his bounty, the instrument thus executed will be denied probate for lack of testamentary capacity. D. FORMALITIES OF WILLS (EXTRINSIC VALIDITY) COMMON FORMALITIES 1. Every will must be in writing; and 2. Executed in a language or dialect known to the testator. SPECIAL FORMALITIES I. NOTARIAL OR ORDINARY WILL a. SUBSCRIPTION – made at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction;  Subscription refers to the manual act of testator and also of his instrumental witnesses of affixing their signature to the instrument. b. ATTESTATION AND SUBSCRIPTION - (evidenced by an “attestation clause”) by 3 or more credible witnesses in the presence of the testator and of one another;  Attestation consists in the act of witnesses of witnessing the execution of the will in order to see and take note mentally that such will has been executed in accordance with requirements prescribed by law. ATTESTATION 1. an act of the senses 2. mental act 3. purpose is to render available proof during probate of will SUBSCRIPTION 1. an act of the hand 2. mechanical act 3. purpose is identification (Cruz vs. or admit his having signed the will in front of himself. ACKNOWLEDGMENT – Done before a notary public by the testator and the instrumental witnesses.  A complete signature is not essential to the validity of a will. the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and the witnesses and the second contains only the attestation clause duly signed at the bottom by the witnesses. Villasor 54 SCRA 31) MANNER OF SIGNING:  The use of any signature. NOTE: The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. Exceptions to the rule that all of the pages of the will shall have to be signed on the left margin by the testator and witnesses:: (1) in the last page. (3) when the will consists of two pages. on the left margin. If the third witness were the notary public himself. provided the part of the name written was affixed to the instrument with intent to execute it as a will. assent. NOTE: This is not necessary when all of the dispositive parts of a will are written on one sheet only. d. 805 and 806. is not per se sufficient to justify denial of probate (Icasiano vs. due to the simultaneous lifting of two pages in the course of signing.  The inadvertent failure of one witness to affix his signature to one page of a testament. To allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Arts. ATTESTATION CLAUSE .c. (2) when the will consists of only one page. he would have to avow. or his first name. e. marks or design intended by the testator to authenticate renders the will sufficiently signed by the testator.  It is sufficiently signed by writing his initials. MARGINAL SIGNATURES – affixed by the testator or the person requested by him to write his name and the instrumental witnesses of the will on each and every page thereof. PAGE NUMBERINGS – Written correlatively in letters placed on the upper part of each page. Icasiano II SCRA 422). when the will consists of two or more pages. the testator knew how to write and is able to do so. or he may use even an assumed name.  A signature by mark will be sufficient even if at the time of placing it. except the last. its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition. and that it has been executed in accordance with the formalities prescribed by law. some. the defect is substantial in character. as a consequence of which the will is invalidated. but whether they might have seen each other sign had they chosen to do so considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. the will is fatally defective. It must state the following ESSENTIAL FACTS: 1. the attestation clause shall be interpreted to said witnesses.  The language used in the attestation clause likewise need not even be known to the attesting witnesses. and such omission cannot be cured by an examination of the will itself. Gustilo)  In the case of an ordinary or attested will. the fact that the testator signed the will and every page thereof. Lacuesta 90 Phil 489) 3. Rosal) 2.  Absence of this clause will render the will a nullity. in such a case.  When the testator expressly caused another to sign the former’s name. fraud. 805 merely requires that. or undue and improper pressure and influence. In the absence of bad faith. TEST OF PRESENCE: Not whether they actually saw each other sign. the number of pages used upon which the will is written. forgery. Otherwise.  However. CA 222 SCRA 781) Effects of defects or imperfections in the Attestation Clause:  If the defect of the attestation clause goes into the very essence of the clause itself or consists in the omission of one.. that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. HOWEVER. (Tabuada vs. 805 (formal requirements). 809) . it may still be considered valid applying the Liberal Interpretation of the law. this fact must be recited in the attestation clause. or caused some other person to write his name. This is known as the DOCTRINE OF LIBERAL INTERPRETATION (Art. Art. even if number of pages is omitted in the AC BUT if there is an acknowledgment clause which states the number of pages or the will itself mentioned such number of pages.memorandum or record of facts wherein the witnesses certify that the will has been executed before them. under his express direction. (Garcia vs. in the presence of the instrumental witnesses. (Caneda vs. or all of the essential facts. (Jaboneta vs. defects and imperfections in the form of attestation or in the language used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with Art. the fact that an additional witness. for one reason or another are incapable of reading their wills (e. protection of the testator from fraud and deception 3. (Article 807) 2. ordinary will: not an essential part. the ascertainment of the testamentary capacity of the testator. 808 applies not only to blind testators but also to those who. poor. if able to do so. in some practicable manner. 4. Not required that the name of the person who writes the testator’s name should also appear on the will. first. the contents thereof. 7. second. OR b) if not possible. 6. identification of the instrument 2. enough that testator’s name is written. Mere knowledge by testator that another is signing. The law refers to page and not to sheet or leaf or folio. An attestation clause need be signed ONLY by the witnesses and not by the testator as it is a declaration made by the witnesses. and as part of one transaction. by one of the subscribing witnesses. is NOT sufficient. Testamentary capacity must also exist at the time of acknowledgment. 8. and notary public. b. (Article 808)  Art. 9. the Court held that the formal imperfections should be brushed aside . 2. but the lawyer who drafted the document. Immaterial in what order the acts are performed provided the signature or acknowledgment by the testator and the attestation of the witnesses be accomplished in one occasion. holographic will: an essential part. defective or blurred vision). Deaf or deaf-mute testator: a) personal reading of the will. Signing of a will by the testator and witnesses and acknowledgment before a notary public. Blind testator:  Double-reading requirement: a. 5. designation of 2 persons to read the will and communicate to him. 3. need not be a single act. who was incompetent also attested to the will.Purposes of requiring witness to attest and to subscribe to a will: 1. so every page used in the will should be signed on the left margin. AND b. read the same aloud in the presence of the testator. 3 witnesses. NOTE: Certain points to consider (Tolentino) 1. date of will: a. If the required numbers of attesting witness are competent. ADDITIONAL REQUIREMENTS FOR SPECIAL CASES 1. and acquiescing in it. Failure or error to state the place of execution will not invalidate the will.g. cannot impair the validity. by the notary public before whom the will is acknowledged. there being no express direction.  In a case where the testator did not read the final draft of the will. 10. bad faith. Also. domiciled in the Philippines. Interested witness  A witness to a will who is incapacitated from succeeding from the testator by reason of a devise/legacy or other testamentary disposition therein in his favor. month. 4. Gaviola 226 SCRA 347) WITNESS TO NOTARIAL WILLS (ARTS. 810. but which alteration did not carry the requisite of full authentication by the full signature of the . cancellation. the “date” in a holographic will should include the day. However. (Alvarado vs. his competence as a witness subsists. Relova (134 SCRA 241). However. 2. which was altered by substituting the original heir with another. 134 SCRA 245) Rule in case of insertion. when there is no appearance of fraud. and c. 3. and year of its execution. NOTE: The law exacts literal compliance with these requirements. of sound mind. the holographic will in dispute had only one substantial provision. or in favor of his spouse. b. erasure or alteration:  Testator must authenticate the same by his FULL SIGNATURE. parent. the Court held in a case that as a general rule.  Nevertheless. deaf or dumb. able to read and write. and need not be shown to have had a good standing in the community where he lives. probate of the holographic will should be allowed under the principle of substantial compliance. the acknowledging notary public cannot be one of the 3 minimum numbers of witnesses. or child. at least 18 years of age. HENCE. 5. perjury. entirely written by the hand of the testator. entirely dated by the hand of the testator. THE DOCTRINE OF LIBERAL INTERPRETATION CANNOT BE APPLIED.when the spirit behind the law was served though the letter was not. HOLOGRAPHIC WILL (Article 810) a./61” appearing on the will is a valid compliance with Art. or false testimony NOTE: A witness need not know the contents of the will. (In the matter of Intestate Estate of Andres de Jesus and Bibiana Roxas de Jesus. undue influence and pressure and the authenticity of the will is established and the only issue is whether or not the date “FEB. not blind. 6. 2. 820 & 821) Requirements: 1. entirely signed by the hand of the testator. (Article 814) NOTE: In the case of Kalaw vs. has not been convicted of falsification of a document. requires that at least 1 witness who knows the handwriting and signature of the testator explicitly declare that the will and signature are in the handwriting of the testator. (Rodelas vs. c. Filipino testator executing a will in the Philippines: Philippine law b. the will remains valid but the insertion is void. c. NOTE: Where the testator himself petitions for the probate of his holographic will and no contest is file. expert testimony may be resorted to. then the insertion becomes part of the will. or . Probate of Holographic Will 1. If the insertion made by a third person is made contemporaneous to the execution of the will. If the insertion after the execution of the will was with the consent of the testator. is judged at the time of the decedent’s death by the law of his nationality. Its intrinsic validity. Filipino testator executing a will outside of the Philippines: either 1) The law of the country in which it is executed. such insertion is considered as not written.  A photostatic or xerox copy of a lost or destroyed holographic will may be admitted because the authenticity of the handwriting of the deceased can be determined by the probate court. the effect must be that the entire will is voided or revoked for the simple reason that nothing remains in the will after that which could remain valid. b. If the holographic will is contested. Aranza. requires at least 3 of such credible witnesses. the fact that he affirms that the holographic will and the signature are in his own handwriting. if none expert witness. As to place: a. If CONTESTED. If UNCONTESTED. and the entire will becomes void. d. however. 2. 119 SCRA 16) GOVERNING LAW ON FORMALITIES 1. If the insertion was made after the execution of the will. as comparison can be made with the standard writings of the testator. if no witness. If the insertion after the execution is validated by the testator by his signature thereon. the burden of disproving the genuineness and due execution thereof shall be on the contestant. then the will is void because it is not written entirely by the testator. Alien testator executing a will in the Philippines: either 1) The law of the Philippines. 2.testator. but without the consent of the testator. because of failure to comply with the requirement that it must be wholly written by the testator. or 2) The law of the Philippines. because the validity of the will cannot be defeated by the malice or caprice of third person. As to time:  The validity of a will as to its form depends upon the observance of the law in force at the time it is made. Effects of words written by another and inserted in the words written by the testator: a. shall be sufficient evidence thereof. or 2) The law of the place in which he resides. Amount of successional rights c. each in consideration of the other --separate wills of 2 persons. Alien testator executing a will outside of the Philippines: either 1) The law of the place where it is executed. d. NOTE: Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines. Reasons: 1. the provisions of which are reciprocal and which shows on its face that the devises are made in consideration of the other. Such is prohibited. Intrinsic validity d. Order of succession b. Capacity to succeed Joint will – a single testamentary instrument which contains the wills of two or more persons. either for their reciprocal benefit or for the benefit of a third person --will of 2 or more persons is made in the same instrument and is jointly signed by them Mutual wills – wills executed pursuant to an agreement between two or more persons to dispose of their property in a particular manner. Reciprocal wills. contrary to the revocable character of a will 3. even though authorized by the foreign country in which they may have been executed (Article 819 Civil Code). which are reciprocal in their provisions.2) The law of the country of which he is a citizen or subject. CODICIL AND INCORPORATION BY REFERENCE . or 4) The law of the Philippines.wills in which the testators name each other as beneficiaries under similar testamentary plans NOTE: A will that is both joint and mutual is one executed jointly by two or more persons. jointly executed by them. Aspects of the will governed by National Law of the Decedent (Article 1039 and Article 16 Civil Code) a. may expose the testator to undue influence. E. and may even induce one of the testators to kill the other. or 3) The law of his country. This prohibition is applicable only in joint wills executed by Filipinos in a foreign country. it does NOT APPLY to joint wills executed by aliens. will is purely personal and unilateral act 2. Its execution has the effect of republishing the will as modified. (Article 825) NOTE: To be effective. by a testator who does not have his domicile in this country. is valid when it is done according to the: a. made after the execution of a will and annexed to be taken as a part thereof. The document or paper referred to in the will must be in existence at the time of the execution of the will. and inventories. LAWS WHICH GOVERN REVOCATION (ART 829) 1. Revocation done outside the Philippines. It must be signed by the testator and the witnesses on each and every page. INCORPORATION BY REFERENCE (ART 827)  Contemplates only lists of properties. Such right to revoke a will cannot be waived or restricted. added to. or altered. 4. F. MODES OF REVOCATION (ART 830) 1.  Provisions which are in the nature of testamentary dispositions must be contained in the will itself. It must be identified by clear and satisfactory proof as the document or paper referred to therein. whether the testator is domiciled in the Philippines or in some other country. laws of the place in which the testator had his domicile at the time of revocation. REVOCATION OF WILLS AND TESTAMENTARY DISPOSITIONS REVOCATION  An act of the mind. by which any disposition made in the original will is explained. By implication of law: a. by a testator who is domiciled in the Philippines. it is valid when it is in accordance with the laws of the Philippines 3. symbolic thereof. or b. If the revocation takes place outside the Philippines. The will must clearly describe and identify the same. 3. terminating the potential capacity of the will to operate at the death of the testator. books of accounts. legal separation revokes testamentary provisions in favor of the offending spouse. 2. If the revocation takes place in the Philippines.CODICIL  A supplement or addition to a will. it must be executed as in the case of a will. stating among other things the number of pages thereof. manifested by some outward or visible act or sign. . it is valid when it is in accordance with the laws of the Philippines 2. except in case of voluminous books of account or inventories. laws of the place where the will was made. Requisites for a valid incorporation by reference: (ART 827) 1. or a codicil. tearing.  Where it is shown that the will was in custody of the testator after its execution. By some will. however.preterition revokes the institution of heir. and e. 50. 3. Implied – when the provisions thereof are partially or entirely inconsistent with those of the previous will NOTE: While express revocation may be effected by a subsequent will. performed by the testator himself or by some other person in his presence and express direction (THE LIST IS EXCLUSIVE. b. A destruction not accomplished in the testator’s presence is an ineffective revocation of the will. and subsequently. He cannot delegate to an agent the authority to do the act for him. or a codicil. completion of the subjective phase. d. it was found among the testator’s effects after his death in such a state of mutilation. or a nontestamentary writing executed as provided in case of wills. actual physical act of destruction. Family Code). devisee/legatee revokes testamentary provisions in his favor. b. d. void ab initio or annulled marriages revoke testamentary dispositions made by one spouse in favor of the other (Art. codicil. 2. Requisites: a. transformation. cancellation or obliteration as represents a sufficient act of revocation. cancelling. act of unworthiness by an heir. said marriage shall be void ab initio and testamentary dispositions made by one in favor of the other are revoked by operation of law (Art. DOCTRINE OF PRESUMED REVOCATION  Whenever it is established that the testator had in his possession or had ready access to the will. alienation. 44. the presumption arises that it must have been revoked by him by an overt act. implied revocation may be effected only by either a subsequent will. By burning. if both spouses of the subsequent marriage acted in bad faith. testamentary capacity at the time of performing the act of destruction. e. intent to revoke (animus revocandi). Another person. it will be . may be selected by him as an instrument and directed to do the revocatory acts in his presence. c. Express – when there is a revocatory clause expressly revoking the previous will or a part thereof b.) NOTE: The act of revocation is a personal act of the testator. judicial action for recovery of debt revokes a legacy of credit/remission of debt. f. but upon his death it cannot be found or located. or obliterating the will. or other writing. which may either be: a. c. executed as provided in case of wills. or loss of bequeathed property revokes a legacy of such property. Family Code). and g. expressly grounding such revocation on the assumption of fact which turns out to be false. as it were.  Its purpose is to cure the will of its formal defects. Effects of Republication by virtue of a Codicil: 1. or he executes a codicil (constructive) to his will. where a testator “revokes” a will with the proven intention that he would execute another will. when in fact. Revocation by mistake  A revocation of a will based on a false cause or an illegal cause is null and void. 3. G. REPUBLICATION AND REVIVAL OF WILLS REPUBLICATION  The act of the testator whereby he reproduces in a subsequent will (express) the dispositions contained in a previous will which is void as to its form. A will republished by a codicil is governed by a statute enacted to the execution of the will. the new will intended to be made as a substitute is inoperative.presumed in the absence of evidence to the contrary. De Molo vs. as where it is stated that the legatees/devisees named therein are dead.  Where the act of destruction is connected with the making of another will so as fairly to raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted.  To republish a will valid as to its form but already revoked the execution of a codicil which makes reference to the revoked will is sufficient. Codicil revives the previous will 2. that such act was performed by the testator with the intention of revoking the will. from the new and later date. all the dispositions must be reproduced or copied in the new or subsequent will. the revocation does not take effect. DOCTRINE OF DEPENDENT RELATIVE REVOCATION (ART 832)  A revocation subject to a condition does not revoke a will unless and until the condition occurs. but which was operative when the codicil was executed. and if for any reason. NOTES:  To republish a will void as to its form. they are living. the revocation fails and the original will remains in full force (Vda. the revocation will be conditional and dependent upon the efficacy of the new disposition. Thus. REPUBLICATION REVIVAL . The old will is republished as of the date of the codicil— makes it speak. Molo 90 Phil 37). where a testator by a codicil or later will. Thus. his failure to validly make a latter will would permit the allowance of the earlier will. testamentary capacity of the testator at the time of the execution of the will. probability exists that the case will come up once again before us . a REVIVAL  The restoration to validity of a will previously revoked by operation of law (implied revocation). the Supreme Court held that. the testatrix’s testamentary capacity and the compliance with the requisites or solemnities prescribed by law.1.  EXCEPTION: Practical considerations. e. On the contrary. 2. Restores extrinsic and revoked will intrinsic defects.g. the first will is not instantly revoked by the second will because the inconsistent testamentary dispositions of the latter do not take effect immediately but only after the death of the testator. NOTE: In implied revocation. when the will is intrinsically void on its face. due execution of the will. Takes place by by an act of the operation of law. Takes place 1. in the event of probate or if the court rejects the will. The probate court cannot inquire into the intrinsic validity of testamentary provisions. this litigation would be protracted.  The statute of limitations is not applicable to probate of wills. identity of the will. Corrects 2. Questions determinable by the probate court: (ICE) 1. the court’s area of inquiry is limited to an examination of. and 3. PRINCIPLE OF INSTANTER  The express revocation of the first will renders it void because the revocatory clause of the second will. not being testamentary in character. if the case were to be remanded for probate of the will.  GENERAL RULE: In probate proceeding. and resolution on the extrinsic validity if the will. ALLOWANCE AND DISALLOWANCE OF WILLS PROBATE  A special proceeding mandatorily required for the purpose of establishing the validity of a will. H. testator 2.  In Nuguid vs Nuguid (17 SCRA 449). the due execution thereof. operates to revoke the previous will instantly upon the execution of the will containing it. And for aught that appears in the record. nothing will be gained. without fraud or deceit or actual coercion. at the time of its execution. 3. Natural Obligations). NCC. RESULT: waste of time. Testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. It is not necessary that the will and codicil be probated together as the codicil may be concealed by an interested party. or the influence of fear. Will was executed through force or under duress. 2. Formalities required by law have not been complied with. Gatmaitan 60 Phil 358)  When a will is declared void because it has not been executed in accordance with the formalities required by law. 6. but to establish a ground of contest based on FRAUD. the payment is effective and irrevocable (Article 1430.  To make a case of UNDUE INFLUENCE. or threats. Icasiano 11 SCRA 422) . the free agency of the testator must be shown to have been destroyed. free agency of the testator need not be shown to have been destroyed. appeal to emotions. but one of the intestate heirs. Grounds for Disallowance of a Will (ART 839) 1. They may be probated one after the other. after the settlement of the debts of the deceased.  Fair arguments. NOTE: GROUNDS ARE EXCLUSIVE. the Court ruled that “the court can inquire as to the intrinsic validity of the will because there was an express statement that the beneficiary was a mistress. expense. persuasion. 215)  The fact that the will has been allowed without opposition and the order allowing the same has become final and executory is not a bar to the presentation of a codicil. (Mercado vs. Will was procured by undue and improper pressure and influence. Santos 66 Phil.  Allegations of fraud and undue influence are mutually repugnant and exclude each other. provided it complies with all the formalities for executing a will.on the same issue of the intrinsic validity or nullity of the will. plus added anxiety. 5. their joining as grounds for opposing probate shows absence of definite evidence against the validity of the will (Icasiano vs. Reyes 98 Phil 996)  Burden is on the person challenging the will to show that such influence was exerted at the time of its execution. or otherwise incapable of making a will. pays a legacy in compliance with a clause in the defective will.  In Nepomuceno vs CA (139 SCRA 207). and entreaties which. 4. on the part of the beneficiary or of some other person. compulsion or restraint do not constitute undue influence sufficient to invalidate a will. Signature of the testator was procured by fraud. (Macam vs. effort. NOTES:  Criminal action will not lie against the forger of a will which had been duly admitted to probate by a court of competent jurisdiction. (Barreto vs. Testator was insane. with or without 2. 3. . (Art 840)  The proper test in order to determine the validity of an institution of heir is the possibility of finally ascertaining the identity of the instituted heir by intrinsic or extrinsic evidence. voluntary act 1.REVOCATION DISALLOWANC E 1. 3. must always cause. INSTITUTION OF HEIRS (ARTS. may be partial 3. they are all deemed to have been instituted simultaneously and not successively. 2. unless it clearly appears that the intention of the testator was otherwise. This is limited only to the case where all of the heirs are of the same class or juridical condition. Presumption of Individuality – When the testator institutes some heirs individually and others collectively. except: when the ground of fraud or influence for example affects only certain portions of the will. always total or total. given by of the testator. INSTITUTION BASED ON A FALSE CAUSE (Article 850) GENERAL RULE: The statement of a false cause for the institution of an heir shall be considered as not written. Presumption of Equality – Heirs instituted without designation of shares shall inherit in equal parts. Presumption of Simultaneity – when the testator calls to the succession a person and his children. those collectively designated shall be considered as individually instituted. it should be applied only to the disposable free portion. PRESUMPTIONS 1. be for a legal cause. and where there are compulsory heirs among the heirs instituted. I. 2. 840-856) INSTITUTION  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. judicial decree. et al. it is obvious that the real cause of the testamentary disposition is not the generosity of the testator but the fact itself which turned out to be false. Reason: Generosity of the testator is the real cause of the testamentary disposition. NOTE: In case of omission without preterition. Effects of Preterition: 1. 2. Intestate succession ensues.  Where the one-sentence will institutes the petitioner as the sole.  a. The devises and legacies are valid insofar as they are not inofficious. Tolentino to the said article is: “The share of the compulsory heir omitted in a will must be first taken from the part of the estate not disposed of by the will. in case the value of the property received is less than the value of the legitime. NOTE: In the above cases. 2. c. or Anything is left from the inheritance which the heir may get by way of intestacy. The suggested alternate phrasing of Dr. 17 SCRA 449) PRETERITION (ART. Requisites: 1. EXCEPTION: If it appears from the face of the will that the testator would not have made the institution had he known the falsity of the cause. universal heir and preterits the parents of the testatrix. 3. by itself. the remedy of the heir is completion of legitime under Art. b. and 3. 854)  Omission in the testator’s will of one. the institution shall be effectual. The compulsory heir omitted must survive the testator. REQUISITES FOR THE ANNULMENT OF INSTITUTION OF HEIRS: 1. cause of institution of heirs must be stated in will. 906. and it contains no specific legacies or bequests. There is no total omission when: A devise/legacy has been given to the heir by the testator A donation inter vivos has been previously given to the heir by the testator. cause must be shown to be false. such universal institution of petitioner. If the omitted compulsory heir should die before the testator. whether living at the time of the execution of the will or born after the death of the testator. if .  Example: Where the person instituted is a total stranger to the testator. It annuls the institution of heir. the rule in Art. is void. it must appear from the face of the will that the testator would not have made the institution had he known the falsity of the cause. some. 2. or all of the compulsory heirs in the direct line. without prejudice to the right of representation. 855 should be followed. The heir omitted must be a compulsory heir in the direct line. The omission must be complete and total in character. (Nuguid vs. Nuguid. and 3. 4. law presumes 3. compulsory heir is merely restored to his legitime. may be 2.any. However. and her holographic will does not explicitly disinherit them but simply omits them altogether. not a case of ineffective disinheritance.  Where the deceased left no descendants. if disinheritance is not lawful. 1. Nuguid 17 SCRA 449) NOTE: Preterition of the surviving spouse (SS) does not entirely annul the institution of the heir since SS is not a compulsory heir in the direct line. done with a that there has legal cause. the law presumes that it is involuntary 3. 4. been merely an oversight or mistake on the part of the testator. (Nuguid vs. but she left forced heirs in the direct ascending line—her parents. the case is one of preterition of parents. always voluntary but voluntary. (Tolentino) . omitted heir gets not only his legitime but also his share in the free portion not disposed of by way of legacies/ devises. since Article 842 protects the legitime of the SS. deprivation of a compulsory heir of his legitime is tacit 2. legitimate or illegitimate. deprivation of a compulsory heir of his legitime is express. the institution is partially annulled by reducing the rights of the instituted heir to the extent necessary to cover the legitime of SS. so much as may be necessary must be taken proportionally from the shares of the heirs given to them by will.” PRETERITION DISINHERITANC E 1. if that is not sufficient. Instances when substitution takes place: instituted heir predeceases the testator. Kinds: 1. and repudiation of the inheritance. c. but he shall be subject to the same charges and conditions imposed upon such instituted heir. SUBSTITUTION OF HEIRS (ARTS 857-870) SUBSTITUTION  The act by which the testator designates the person or persons to take the place of the heir or heirs first instituted (Tolentino). Simple or Common (that which takes place when the testator designates one or more persons to substitute the heirs/s instituted in case such heir/s should die before him. --compulsory heir may be represented. incapacity of the instituted heir to succeed from the testator. the substitute shall not only take over the share that would have passed to the instituted heir. J. compendious (one heir is designated to take the place of two or more heirs)  a. the heir who repudiates his inheritance cannot transmit any right to his own heirs. or should not wish.EFFECT OF PREDECEASE --an heir who dies before the testator shall transmit no right to his own heirs (rule is absolute with respect to a voluntary heir) --what is transmitted to the representatives of compulsory heir is his right to the legitime and not to the free portion EFFECT OF INCAPACITY --A voluntary heir who is incapacitated to succeed from testator shall transmit no right to his own heirs. or should be incapacitated to accept the inheritance) 2. Brief or Compendious: brief (there are two or more persons designated by the testator to substitute for only one heir). Effect of substitution: General rule: once the substitution has taken place. It may be considered as a subsidiary and conditional institution. but only with respect to his legitime EFFECT OF REPUDIATION --whether voluntary or compulsory. b. . Exceptions: (1) When the testator has expressly to the contrary. (2) When the charges or conditions are personally applicable only to the heir instituted.  LIMITATIONS: 1. Second heir (fideicommissary) to whom the property is transmitted by the first heir. 3. d. 2. The testator cannot impose any charge. CA 334 SCRA 522) NOTE: Pending transmission of property.3. An obligation clearly imposed upon such first heir to preserve the property and to transmit it to the second heir. thus. c. although the fideicommissary is entitled to all the rights of a naked owner. the legitime of the surviving spouse cannot be impaired. are considered as not imposed. and modes however. b. terms. Fiduciary and fideicommissary must be living at the time of the death of the testator. CONDITIONAL. 2) for a term. Fideicommissary Requisites: a. the fiduciary is entitled to all the rights of a usufructuary. Vda. encumbrance. they must be clearly expressed in the will. if the testator institutes his wife as heir subject to the condition that she will never marry again. however. The condition must fairly appear from the language of the will. Impossible conditions and those contrary to law or good customs are presumed to have been imposed erroneously or through oversight. Conditions. Substitution must not go beyond one degree from the heir originally instituted. she immediately acquires a right to the inheritance upon . 4. it is not binding. An absolute condition not to contract a first marriage is always void and will be considered as not written. De Ramirez 111 SCRA 704) K. there is no fideicommissary substitution (Rabadilla vs. Even so. “Degree” means degree of relationship. burden. e. AND TESTAMENTARY  GENERAL RULE: The institution of an heir may be made 1) conditionally. condition. Consequently.  Without the obligation clearly imposing upon the first heir the preservation of the property and its transmission to the second heir. An absolute condition not to contract a subsequent marriage is generally void. b. Substitution must be made expressly. Substitution must not burden the legitime of compulsory heirs. Limitations: a.  A fideicommissary substitution is void if the first heir is not related in the 1 st degree to the second heir (Ramirez vs. c. Otherwise. or 3) for a certain purpose or cause (modal).  An absolute condition not to contract marriage when validly imposed is resolutory in character. unless imposed upon a widow or widower by the deceased spouse or by the latter’s ascendants or descendants. are not presumed. MODAL TESTAMENTARY DISPOSITIONS WITH A TERM (ART 871-885) DISPOSITIONS. or substitution whatsoever upon the legitime of compulsory heirs. First heir (fiduciary) called to the succession. the death of testator. Conditions imposed by the testator upon the heirs shall be governed by the rules established for conditional obligations in all matters not provided for by the law on succession. consider the same as mode. and c. or c. NOTES:  When in doubt as to whether there is a condition or merely a mode. 2. unless the testator has provided otherwise. . specific condition not to contract marriage with a determinate person. or legatee. Mixed – depends jointly upon the will of the heir. devisee. 3. of a statement of the: a. NOTE: However. b. Kinds of Conditions 1. 5. and must be performed by him personally. MODAL INSTITUTION (INSTITUCION SUB MODO)  Attachment by the testator to an institution of heir.  When in doubt as to whether there is a mode or merely a suggestion. or legatee. or to a devise or legacy. specific condition to contract marriage with a determinate person. Causal or mixed conditions may be fulfilled either before or after such death. Potestative Condition – depends exclusively upon the will of the heir. object of the institution. application of the property left by testator. generic condition to contract marriage. or legatee and upon chance and/or will of a third person. devisee. Any disposition made upon the condition that the heir shall make some provisions in his will in favor of the testator or of any other person shall be void (disposicion captatoria). Potestative Conditions must be fulfilled after the death of the testator (except when it has already been fulfilled and is of such nature that it cannot be repeated). the following relative conditions regarding marriage have been considered as valid and binding: a. charge imposed by him. Fulfillment of Conditions: 1. Causal Condition –depends upon the will of the heir. b. 2. consider same only as a suggestion. but upon the will of a third person. devisee. 6. but if she violates the condition by contracting a 2 nd marriage. she loses her right to said inheritance. g. L. E. it shall be complied with in a manner most analogous to and in conformity with his wishes. The other half is what is termed under the NCC as the “free portion” from which the legitime of the concurring compulsory heirs are taken. called compulsory heirs. devisee/legatee. therefore. NOTE:  If the condition is casual.g. (Imperial vs. and who succeed whether the testator likes it or not. If the condition is potestative or mixed.g. This “free portion” is different from the “disposable free portion” over which the testator has testamentary control. 3. one who inherits conditionally is not yet an heir) DOCTRINE of CONSTRUCTIVE FULFILLMENT: When without the fault of the fault of the heir. The “disposable free portion” is that which remains after the legitime has been covered. LCD.  The course of action to enforce a legitime accrues upon the death of the donor-decedent since it is only then that the net estate may be ascertained and on which basis. COMPULSORY HEIRS (CH)  Those for whom the legitime is reserved by law. the legitime may be determined. Primary – those who have precedence over and exclude other CH. E. the ‘mode’ obligates but does not suspend (for he who inherits with a mode is already an heir. the doctrine is applicable. an institucion sub modo cannot take effect in the exact manner stated by the testator. E. . ICD and SS. Kinds of Compulsory Heirs: 1. Secondary – those who succeed only in the absence of the primary CH. LPA or IP. 2. LEGITIMES (ARTS 886 – 914) LEGITIME  That part of the testator’s property which he cannot dispose of because the law has reserved it for certain heirs who are. the doctrine is not applicable since the fulfillment of the event which constitutes the condition is independent of the will of the heir. Concurring – those who succeed together with the primary or secondary CH. The ‘condition’ suspends but does not obligate. They cannot be deprived by the testator of their legitime except by disinheritance properly effected. CA 316 SCRA 313) NOTE: One half of the estate is always reserved for the primary or secondary compulsory heirs. adopted children are deemed legitimate children of the adopters. Illegitimate 4. Rule of proximity . RULES: 1.  By force of the Family Code. Surviving children and spouse (SS) descendants (ICD) NOTES:  See Sections 17 & 18 of R. Legitimate 1.A. In default of 2. 8552. Direct descending line a. illegitimate parents only (IP) 4. are each entitled to 1/2 of the legitime of a LC. thus abrogating the 5:4 ratio between “natural” and “non-natural” IC. Rule of preference between lines b. In default of the foregoing. Legitimate children and children and descendants descendant (LCD) s (LCD) 2. Illegitimate the children and foregoing. Surviving spouse (SS) 3. descendant legitimate s (ICD) parents and ascendants (LPA) 3.  By force of the Family Code.If the testator is a LEGITIMATE person If the testator is an ILLEGITIMATE person 1. IC without distinction and so long as their filiation is duly established or proved in accordance with law. Rule of equal division 3. . Non-impairment of legitime TABLE OF LEGITIMES SURVIVOR LEGITIME LC ½ NOTES Divide by the # of LC. or disinheritance (LC: LD only. incapacity. the share of the SS having preference over that of the IC. If all the LC repudiate their legitime. IC: both LD and ID) d.c. whether they survive alone or with concurring CH. Rule of division by lines b. Direct ascending line a. Right of representation ad infinitum in case of predecease. 1 LC SS ½ ¼ 2 or more ½ LC equal to SS 1 LC LC IC LC SS IC ½ ½ of 1 LC ½ ¼ ½ of 1 LC All the concurring CH get from the half free portion. the next generation of LD succeed in their own right 2. IC succeed in the ¼ in equal shares. SS IC SS 1/3 1/3 ½ 1/3 if marriage is . LPA IC ½ ¼ LPA SS LPA SS IC IC ½ ¼ ½ 1/8 ¼ ½ Divide equally among the IC.whose share may suffer reduction pro rata because there is no preference among themselves . LPA ½ Whether they survive alone or with concurring CH. 4.in articulo mortis and deceased spouse dies within 3 mos. Determination of all debts and charges which are chargeable against the estate. 6. Determination of the net value of the estate by deducting all the debts and charges from the gross value of the estate. Determination of the amount of the legitime from the total thus found. Imputation of the value of all donations inter vivos made to compulsory heirs against their legitime and of the value of all donations inter vivos made to strangers against the disposable free portion and restoration to the hereditary estate if the donation is inofficious. 5. Only the parents are of IC are included. Determination of the gross value of the estate at the time of the death of the testator. IP IP Any child ½ excluded -It depends Children inherit in the amounts established in the foregoing rules. and . 3. Collation or addition of the value of all donations inter vivos to the net value of the estate. after the marriage. 2. Grandpare nts and other ascendants are excluded. IP SS ¼ ¼ STEPS IN DETERMINING THE LEGITIME OF COMPULSORY HEIRS: 1. the reserva would have no reason to arise where the ascendants who acquire the property themselves belong to the line of relatives from which the property was. To maintain a separation between paternal and maternal lines.  It constitutes as an exception to both the system of legitime and the order of intestate succession. NOTE: Considering the rationale for reserva troncal which is to ultimately revert ownership of property that originally belongs to a line of relatives but which by force of law passes to a different line. 2. The descendant (propositus) should have died without any legitimate issue in the direct descending line who could inherit from him. To reserve certain property in favor of certain persons.” 3. 3. 2.g. RESERVA TRONCAL (ART 891)  The reservation by virtue of which an 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. remission. Reservista – the ascendant. in turn. The so-called “arbiter of the fate of the reserva troncal. by way of legitime or intestate succession). Requisites: 1. not belonging to the line from which the property came (Justice Vitug) that is the only compulsory heir and is obliged to reserve the property.g. Actual act of restoring to the hereditary estate that part of the donation which is inofficious in order not to impair the legitime of compulsory heirs. 908 and Arts. by some chance or accident. testate or intestate succession). or brother or sister from whom the propositus had acquired the property by gratuitous title (e. . is obliged to reserve such property for the benefit of relatives who are within the 3rd degree and who belong to the line from which such property came. 3. 2. acquired by the descendant. Act of charging or imputing such value against the legitime of the compulsory heir to whom the thing was donated (Arts. Propositus – the descendant who died and from whose death the reservista in turn had acquired the property by operation of law (e. Purposes: 1. Originator – the ascendant. The property should have been acquired by operation of law by an ascendant (reservista) from his descendant (propositus) upon the death of the latter. 3. property which otherwise would have remained with the said family. Distribution of the residue of the estate in accordance with the will of the testator COLLATION 1. 1061-1077). 2. donation. Fictitious mathematical process of adding the value of the thing donated to the net value of the hereditary estate (Art. To prevent persons outside a family from acquiring. Personal elements: 1. 1061-1077). The property should have been previously acquired by gratuitous title by the descendant (propositus) from another ascendant or from a brother or sister (originator).7. (c) return of price received for movables alienated and (d) payment of value of immovable alienated. (4) To secure by mortgage (a) restitution of movables not alienated. Obligations of Reservista: (1) To make an inventory of all reservable property. They must be related by blood not only to the propositus but also to the originator. but if he survives such reservista. there is still an obligation to reserve.  A reservatorio may dispose of his expentancy to the reservable property during pendency of the reserve in its uncertain and conditional form. there are 2 events to consider: 1. (3) To annotate in Registry of property the reservable character of all reservable immovable property. NOTE: In determining the right of the reservatarios over the reservable property. Rule of proximity c. and that he belongs to the line from which the reservable property came) d.NOTE: Dr. “Full blood/double share” rule in Art. by will. Reservista owns the property subject to a resolutory condition. If he dies before the reservista. 4. Tolentino is of the view that even if the reservista and the originator belong to the same line. Rule of preference between lines b. Right of representation (provided that the representative is a relative of the descendant. NOTE: The NCC did not provide for the rules on how the reservatarios would succeed to the reservista. brother/sister. (2) To appraise value of all reservable movable property. However. the following rules on intestacy have been consistently applied: a. Reservatarios – the relatives of the propositus within the 3rd degree and who belong to the line from which the property came and for whose benefit the reservation is constituted.propositus within 3rd degree. 1006  Property subject to reservation: must be the same property which the reservista had acquired by operation of law from propositus upon the death of the latter and which the latter. he has not transmitted anything. in turn had acquired by gratuitous title during his lifetime from another ascendant. only the legitime passes by operation of law. In case of testate succession. the transmission shall become effective.  A will may prevent the constitution of a reserva. opt to give the legitime of . 2. Death of reservista: surviving reservatarios acquire a perfect right. NOTE: All personal elements must be joined by bonds of legitimate relationship. (b) payment of damages caused by his fault or negligence. The propositus may. Death of propositus: all qualified reservatarios acquire an inchoate right. one half of the properties acquired by gratuitous title should be reservable. 2. when the reservista holds the property adversely against them in the concept of an absolute owner. the inheritance to which he has a right. DISINHERITANCE (ART 915 – 923)  A testamentary disposition by which a person is deprived of. or brother or sister. the reserva minima rule (proportional reserva) should be followed. or excluded from. 3. Waiver or renunciation by the reservatarios. 5. if the ascendant was not disentitled in the will to receive such properties. Cause must be stated in the will itself. Registration by the reservista of the property as free property under the Land Registration Act M. Prescription of the right of the reservatarios. 6. Requisites: 1. . Death of all relatives of propositus within the 3 degree who belong to the line from which the property came. Cause must be certain and true. 4. Causes for Extinguishment of Reserva Troncal: 1. The heir disinherited must be designated in such a manner that there can be no doubt as to his identity. and the other half should be free.his ascendant without giving to the latter properties he had acquired by gratuitous title from another ascendant. Loss of the reservable property for causes not due to the fault or negligence of the reservista.  A disinheritance properly effected totally excludes the disinherited heir from the inheritance. Effected only through a valid will. 5. 2. Deprivation of the compulsory heir who is disinherited of any participation in the inheritance including the legitime. The disinherited heir is deprived not only of the legitime but also of such part of the free portion that would have passed to him by a previous will (which is revoked. Total. Effects of Disinheritance: 1. However. The rule holds that all property passing to the reservista must be considered as passing partly by operation of law and partly by will of the propositus. For a cause expressly stated by law. The children/descendants of the person disinherited shall take his or her place and shall preserve the rights of compulsory heirs with respect to the legitime. 3. 6. Death of reservatarios. Unconditional. as inconsistent with. In such case. rd 2. a reserva troncal is avoided. Thus. 4. and 7. the subsequent disinheritance) or by intestate succession. IMPERFECT DISINHERITANC E 1. parents or ascendants. The disinherited parent shall not have the usufruct or administration of the property which constitutes the legitime.  Effects: 1. legacies and other testamentary dispositions shall be valid to such extent as will not impair the legitime.Always intentional 4. 2.3. 3. Devises. If testator did not dispose of the free portion: compulsory heir is given all that he is entitled to receive as if the disinheritance has not been made. Effect: Total annulment of institution of heirs 3. IMPERFECT DISINHERITANCE  A disinheritance which does not have one or more of the essential requisites for its validity. and spouse: . Always implied 3. The person disinherited may be any compulsory heir PRETERITION 1. does not affect the dispositions of the testator with respect to the free portion. If testator had made disposition of the entire estate: annulment of the testamentary dispositions only in so far as they prejudice the legitime of the person disinherited. May be intentional or unintentional 4. without prejudice to lawful dispositions made by the testator in favor of others. express Always 2. Effect: Partial annulment of institution of heirs Common Causes for Disinheritance of children or descendants. The person omitted must be a compulsory heir in the direct line 2. When the heir has been found guilty of an attempt against the life of the testator. Parents/Ascendants: a. Maltreatment of the testator by word or deed by the child/descendant. 2. c. Refusal without justifiable cause to support the testator who disinherits such heir. When the spouse has given cause for legal separation. and 3. intimidation. approximating that which prevailed before the testator learned of the cause for disinheritance. When the heir by fraud. 4. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life. Loss of parental authority for causes specified in the Code. b. it cannot be renewed except for causes subsequent to the revocation or based on new grounds. c. Peculiar Causes for Disinheritance 1. NOTE: Once disinheritance has been revoked or rendered ineffectual. When the parent/ascendant has been convicted of adultery or concubinage with the spouse of the testator. Reconciliation. and spouse in case of children and parents. Conviction of a crime which carries with it a penalty of civil interdiction. or undue influence causes the testator to make a will or to change one already made. Attempt by one of the parents against the life of the other. Spouse: a. 2. unless there has been reconciliation between them. Children/Descendants: a. 3. RECONCILIATION  It is the resumption of genuine cordial relationship between the testator and the disinherited heir. and d. . Nullity of the will which contains the disinheritance. When the child/descendant leads a dishonorable or disgraceful life. When the spouse has given grounds for the loss of parental authority. Subsequent institution of the disinherited heir. When the child/descendant has been convicted of adultery or concubinage with the spouse of the testator. 2. 3. reciprocally manifested by their actions subsequent to the act of disinheritance. or attempted against their virtue. b. his/her descendants or ascendants. if the accusation has been found groundless. When the heir has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more.1. Revocation of Disinheritance: 1. violence.  A subsequent reconciliation between the offender and the offended person deprives the latter of the right to disinherit. Such pardon must specifically refer to the heir and to the acts causing the disinheritance. is not enough. It may be made expressly or tacitly. a conduct that is naturally expected of every decent person. the testator must pardon the disinherited heir. If disinheritance has not been made: Rule on reconciliation does not apply. (Art.  No particular form is required. . 2. and renders ineffectual any disinheritance that may have been made. 1033. 924 – 959) Persons charged with legacies and devises: (1) compulsory heir. NOTE: Where the cause for disinheritance is likewise a ground for unworthiness to succeed. The law effects the disinheritance.  In order to be effective. N. The disinheritance becomes ineffective. (2) voluntary heir. what is the effect of a subsequent reconciliation upon the heir’s capacity to succeed? 1. there is a presumption that such legacy or devise constitutes a charge against the decedent’s estate. (3) legatee or devisee. The heir continues to be incapacitated to succeed unless pardoned by the testator under Art. the provisions on institution of heirs are generally applicable to them. If disinheritance has been made: Rule on reconciliation applies. LEGACIES AND DEVISES (ARTS.  Since legacies and devises are to be taken from the disposable free portion of the estate. The heir must accept the pardon. 922) NOTES:  Mere civility which may characterize their relationship. (4) estate NOTES:  If the will is silent with regard to the person who shall pay or deliver the legacy/devise. thus. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee/devisee gratuitously 4. There is a clear intention to comply with legacy or devise. Belonging to the testator at the time of the execution of the will but alienated in favor of a 3rd person 3. Not belonging to the testator at the time the will is executed but he has ordered that the thing be acquired in order that it be given to the Effective Revoked No revocation.STATUS OF EFFECT ON THE PROPERTY GIVEN LEGACY/DEVIS BY LEGACY/DEVISE E 1. Belonging to the testator at the time of the execution of the will until his death 2. Belonging to the testator at the time of the execution of the will but alienated in favor of the legatee or devisee onerously 5. Legatee/devise e can demand reimbursement from the heir or estate Effective . Not belonging to the testator at the time the will is executed but afterwards becomes his by whatever title 8. Already belonged to the legatee/devisee at the time of the execution of the will even though another person may have interest therein 9. Not belonging to the testator at the time the will is executed and the testator erroneously believed that the thing pertained to him 7.legatee/devisee 6. Already belonged to the legatee or devisee at the time of the execution of the will even though it may have been subsequently alienated by him Void Effective Ineffective Ineffective . Legitime of compulsory heirs 2. 911 Order of preference: (LIPO) 1. L for support 4. Donations inter vivos 3.Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property by onerous title Legatee/devise e can claim nothing by virtue of the legacy/devise Legatee/devise e can demand reimbursement from the heir or estate ART. Preferential legacies or devices 4. L for education 5. determinate thing which forms a part of the estate . Preferential L/D 3.10. Remuneratory L/D 2. 950 Order of preference: (RPSESO) 1.Testator had knowledge that the thing bequeathed belonged to a third person and the legatee/devisee acquired the property gratuitously after the execution of the will 11. All other legacies or devices pro rata ART. L/D of a specific. Testator transforms the thing bequeathed in such a manner that it does not retain either the form or the denomination it had. pro Application: (1) When there are no compulsory heirs and the entire estate is distributed by the testator as legacies or devises. or any part thereof. it being understood that in the latter case the legacy or devise shall be without effect only with respect to the part alienated. or (2) When. 2. NOTES:  In case of reduction in the above cases. Except: when the thing should again belong to the testator after alienation. Article 950 governs. or (2) When there are compulsory heirs but their legitime has already been provided for by the testator and there are no donations inter vivos. although. Article 911 applies. . the inverse order of payment should be followed. the legitime has been preserved by the testator himself there are donations inter vivos. but when there is a conflict between compulsory heirs and devisees and legatees.  When the question of reduction is exclusively among legatees and devisees themselves.All others rata Application: (1) When the reduction is necessary to preserve the legitime of compulsory heirs from impairment whether there are donations inter vivos or not. GROUNDS FOR REVOCATION OF LEGACIES AND DEVISES (ART 957) 1. Testator by any title or for any cause alienates the thing bequeathed. S. If the Institution fails. Partial institution of heir. and those in the direct ascending line shall. Rule of Preference between lines  Those in the direct descending line shall exclude those in the direct ascending and collateral lines. noncompliance with suspensive conditions affecting the bequests. Non-compliance or impossibility of compliance with the will. 3. incapacity. exclude those in the collateral line. LEGAL OR INTESTATE SUCCESSION  That which is effected by operation of law in the absence or default of a will.3. in turn. Preterition. sale of the thing to pay the debts of the deceased during the settlement of his estate. or after his death without the heirs fault 4. If there is no substitute. 5. 9.I. the right of Representation applies in the direct descending line to the legitime if the vacancy is caused by predecease. 6. order of Justice Paras. Predecease of the instituted heir. Incapacity of instituted heir. or one which has subsequently lost its validity.R. 4. 8. Thing bequeathed is totally lost during the lifetime of the testator. or with a void will. Non-fulfillment of suspensive condition attached to the institution of heir. intestacy takes place as to the undisposed portion (mixed succession). saving the right of representation when it properly takes place. 11. NOTE: LIST IS NOT EXCLUSIVE II. RULES 1. Fulfillment of resolutory condition. 1016 are present. or disinheritance. 2. If a person dies without a will. 2. the rules on Intestate succession shall take over. Other causes: nullity of the will. 7.A. Intestacy may be total or partial depending on whether or not there are legacies/devises. The right of Accretion applies to the free portion when the requisites in Art. follow the I. and the right of Representation or Accretion does not apply. NOTE: In all cases where there has been an institution of heir. Rule of Proximity  The relative nearest in degree excludes the more distant ones. A. CAUSES OF INTESTACY 1. If there is no substitute. Substitution occurs. Repudiation by the instituted heir. . Expiration of term or period of institution. 10. Absence of an institution of heir. In such case. B. The representative is called to the succession by the law not by the person represented. half blood: only one of either parent is the same. Rule of Barrier between the legitimate family and the illegitimate family  The illegitimate family cannot inherit by intestate succession from the legitimate family and vice-versa. 2. b) Division among brothers and sisters. He succeeds the one whom the person represented would have succeeded. the full blood shall take a portion in the inheritance double that of the half-blood. C. NOTES:  In the direct line. 7. only the Rule of Proximity applies. NOTE: This rule is subject to the rule of preference between lines. The adopted is deemed a legitimate child of the adopter (AP). NOTE: In case of a disposition made in general terms under Article 959. and c) Division In cases where the right of representation takes place. This rule is subject to the rule of preference between lines. Rule of Equal Division  Relatives in the same degree shall inherit in equal shares. 5. Full blood: same father and mother. 6. but who come from a common ancestor. nephews or nieces. by virtue of which the representative is raised to the place and degree of the person represented. RELATIONSHIP (ARTS. 5. some of whom are of the full and others of half blood. 4.  EXCEPTIONS: a) Division in the ascending line (between paternal and maternal grandparents). A series of degrees forms a line. the legal filiation is personal and exists only between the adopter and the adopted. 963 – 969) 1. never in the ascending. 970 – 977)  A right created by fiction of law. 3. representation takes place ad infinitum in the direct descending line. Number of generations determines proximity. 4. 3. survive. A direct line is that constituted by the series of degrees among ascendants and descendants (ascending and descending). A line may be direct or collateral. Rule of Double Share for full blood collaterals  When full and half-blood brothers or sisters. A collateral line is that constituted by the series of degrees among persons who are not ascendants or descendants. Each generation forms a degree. but still remains as an intestate heir of his natural parents and other blood relatives. . and acquires the rights which the latter would have if he were living or if he could have inherited. RIGHT OF REPRESENTATION (RR) (ARTS. In adoption. b) When a legal heir in the direct descending line is excluded from the inheritance due to incapacity or unworthiness and he has children or descendants. D. Illegitimate children or descendants (ICD) 4. Other collateral relatives within the 5 degree (C5) 7. INTESTATE OR LEGAL HEIRS  Those who are called by law to the succession either in the absence of a will or of qualified heirs. b) When a compulsory heir in the direct descending line is excluded from the inheritance due to incapacity or unworthiness and he has children or descendants. c) When brothers or sisters had predeceased the decedent and they had children or descendants. c) When a compulsory heir in the direct descending line is disinherited and he has children or descendants. Intestate Succession a) When a legal heir in the direct descending line had predeceased the decedent and was survived by his children or descendants. d) When illegitimate children represent their illegitimate parents who already died in the estate of their grandparents. Legitimate parents or ascendants (LPA) 3. and who are deemed called based on the presumed will of the decedent. nephews and nieces (BS/NN) th 6. Illegitimate children or descendants (ICD) . Testamentary Succession a) When a compulsory heir in the direct descending line had predeceased the testator and was survived by his children or descendants. and only if they concur with at least 1 uncle or aunt. 1. Surviving spouse (SS) 5. representation takes place only in favor of the children of brothers or sisters (nephews and nieces). representation covers only the legitime. e) When nephews and nieces inherit together with their uncles and aunts in representation of their deceased parents who are the brothers or sisters of said uncles and aunts. State IRREGULAR ORDER OF SUCCESSION (Decedent is an illegitimate person): 1. Legitimate children or descendants (LCD) 2. Legitimate children or descendants (LCD) 2. d) A legatee/devisee who died after the death of the testator may be represented by his heirs. whether of the full or half-blood. Brothers and sisters. 2. In the collateral line. REGULAR ORDER OF SUCCESSION (Decedent is a legitimate person): 1. and SS 2. nephews and nieces (BS/NN) State ORDER OF CONCURRENCE 1. Illegitimate parents (IP) Surviving spouse (SS) Brothers and sisters. LCD. satisfy SS legitimes. . Estate IC would be insufficient. Apply concurrence theory. LC then divide estate SS by total number. and SS 3.) SS 1/2 BS/NN 1/2 1 LC First.3. ICD. SS and IP 5. 4. Cinco. ICD and SS 4. State (alone) TABLE OF INTESTATE SHARES SURVIVOR INTESTATE SHARE Any class Entire estate alone 1 LC 1/2 SS 1/2 (Diongson vs. LPA 1/2 SS 1/2 LPA 1/2 SS 1/4 IC 1/4 IP 1/2 SS 1/2 (The law is silent. 74 SCRA 118) 2 or more Consider SS as 1 LC. C5 (alone) 7. ICD. 6. LPA. 5. BS/NN and SS 6. . Distribute such excess in the proportion 1:2:2. There would be an excess in the estate. LPA/IP AP SS 3. Even if there is an order of intestate succession. Right of Representation (RR) in the collateral line occurs only in intestate succession.2 or more LC SS IC Reduction must be made according to the rules on legitimes. not the exclusion theory. ORDER OF CONCURRENCE IN THE CASE OF ADOPTED CHILD SURVIVORS SHARE 1. LPA/IP ½ AP ½ 2. LPA AP SS ICD ½ ½ ½ ½ 1/3 1/3 1/3 CARDINAL PRINCIPLES OF INTESTATE SUCCESSION (Justice Paras) 1. the Compulsory Heirs (CH) are never excluded. never in testamentary succession because a voluntary heir cannot be represented (collateral relatives are not CH). in accordance with the concurrence theory. satisfy legitimes. The Civil Code follows the concurrence theory. LPA AP ICD 4. First. The legitimes of LCD and SS shall always be first satisfied in preference to the ICD. 2. then the amount of the testamentary disposition must be deducted from the disposable free portion. a. MIXED SUCCESSION OR PARTIAL INTESTACY  Succession that is effected partly by will and partly by operation of law. whose legal or intestate portions exceed their respective legitimes. IV. and those who are not compulsory heirs will get nothing. III. PROVISIONS COMMON TO TESTAMENTARY AND INTESTATE SUCCESSIONS A. RR: when they concur with aunts and uncles (provided that RR is proper) 6. A renouncer can represent. Nephews and nieces inherit either by RR or in their Own Right (OR). 5. The intestate shares are either equal to or greater than the legitime. 4. A person who cannot represent a near relative cannot also represent a relative farther in degree. b. ICD of legitimates cannot represent because of the barrier. If among the concurring intestate heirs there are compulsory heirs.3. the grandchildren inherit in their own right because RR would not be proper. provided representation is proper. then the intestate heirs who are compulsory heirs will get only their legitime. 4. RULES: 1. 8. There can be reserva troncal in intestate succession. 9. OR: when they do not concur with aunts and uncles. 7. If the intestate share of a compulsory heir is equal to his legitime. but both the ICD and LCD of illegitimates can. to be borne by all the intestate heirs in the proportions that they are entitled to receive from such disposable free portion as intestate heirs. The law of legitimes must be brought into operation in partial intestacy. If the testamentary dispositions consume the entire disposable free portion. 2. EXCEPTION: Whenever all the children repudiate. RIGHT OF ACCRETION (A) (ARTS 1015 – 1023) . because the testamentary dispositions can affect only the disposable free portion but never the legitimes. then the amount of the testamentary disposition must be deducted only from the intestate shares of the others. but cannot be represented. GENERAL RULE: Grandchildren always inherit by RR. 3. in the proportions stated above. IS 2. there is representation if there are children or descendants. the part assigned to one who renounce or cannot receive his share. Requisites: 1. repudiation. rather than to his legal heirs. or REPUDIATION in both TESTAMENTARY and INTESTATE SUCCESSION CAUSE TESTAMENTAR INTESTA OF Y SUCCESSION TE VACANC Legiti SUCCESFree Y SION me Portio (IS) n Predece 1. . the others inherit in their own right. RR ase 2. and 2. legacy or devise (caused by predecease.  A right based on the presumed will of the deceased that he prefers to give certain properties to certain individuals. pro indiviso. I S 2. I S Repudia IS A A -tion Summary: (A) In testamentary succession: (1) Legitime: (a) In case of predecease of an heir. the others inherit in their own right. or colegatees. INCAPACITY. IS Incapaci 1. results are the same as in predecease. (b) In case of incapacity. (d) In case of repudiation by an heir. R 1. IS 2. A 1. legacy or devise. or to the same portion thereof. I R 2. 2 or more persons must have been called to the same inheritance. DISINHERITANCE.) EFFECTS of PREDECEASE. R _ _ i-tance R 2. devise or legacy. nonfulfillment of suspensive condition or void or ineffective testamentary dispositions. incapacity. or who died before testator. (c) In case of disinheritance. there must be a vacancy in the inheritance. R ty R 2. if none. A right by virtue of which. when two or more persons are called to the same inheritance. RR 1. A 1. co-devisees. results are the same as in predecease. I S S Disinher 1. is added or incorporated to that of his co-heirs. parents or children. even if the testator should die after the approval thereof. He must not be incapacitated or disqualified by law to succeed. descendant. B. community. and 2. there is representation if there are children or descendants. organization or institution to which such priest or minister may belong. Attesting witness to the execution of a will. (2) In case of incapacity. B. or the minister of the gospel who extended spiritual aid to him during the same period. the spouse.(2) Disposable free portion: Accretion takes place when requisites are present. Priest who heard the confession of the testator during his last illness. brother. parents or children. if none. (3) In case of repudiation. or spouse. associations and corporations not permitted by law to inherit. chapter. Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved. descendants and ascendants. Those made in favor of a person with whom the testator was guilty of adultery or concubinage at the time of the making of the will. surgeon. any provision made by the ward in favor of the guardian when the latter is his ascendant. THE FOLLOWING ARE INCAPABLE OF SUCCEEDING: A. Based on Acts of Unworthiness (A4F3P) . Relatives of such priest or minister of the gospel within the 4 degree. nurse. Those made in consideration of a crime of which both the testator and the beneficiary have been found guilty. by reason of his public office C. legatee/devisee must be living or in existence at the moment the succession opens. 3. the others inherit in their own right. 3. 2. th 4. The heir. health officer or druggist who took care of the testator during his last illness. 5. Physician. nevertheless. or any one claiming under such witness. Based on Morality or Public Policy (ART 739) 1. and 6. spouse. Based on Undue Influence or Interest: (PIGRAP) 1. 1024 – 1040) Requisites: 1. order. the church. but if such requisites are not present. Those made in favor of a public officer or his spouse. CAPACITY TO SUCCEED BY WILL OR BY INTESTACY (ARTS. there is always accretion. 2. Individuals. results are the same as in predecease. (B) In intestate succession: (1) In case of predecease. sister. the others inherit in their own right. shall be valid. or from revoking one already made. intimidation. ACCEPTANCE AND REPUDIATION OF INHERITANCE (ARTS. 3. or undue influence should cause the testator to make a will or to change one already made. there is no obligation to make an accusation. 8. Retroactive . except if there is vitiation of consent or an unknown will appears 3. Any person who by fraud. 7. Any person who falsifies or forges a supposed will of the decedent.1. revoked when the testator revokes the will or the institution C. 1041 – 1057) Characteristics: (VIR) 1. Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life. descendants or ascendants. should fail to report it to an officer of the law within a month. or alters the latter's will. Any heir of full age who. his/her spouse. PARDON OF ACTS OF UNWORTHINESS EXPRESS 1. unless the authorities have already taken action. made by the execution of a document or any writing in which the decedent condones the cause of incapacity 2. he thereby submits it to the rules on disinheritance. and Any person who by the same means prevents another from making a will. Irrevocable. conceals. according to law. Voluntary and free 2. this prohibition shall not apply to cases wherein. NOTE: The moment the testator uses one of the acts of unworthiness as a cause for disinheritance. Any person who has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more. 2. violence. Any person who has been convicted of an attempt against the life of the testator. Thus. 6. having knowledge of the violent death of the testator. if the accusation has been found groundless. Any person convicted of adultery or concubinage with the spouse of the testator. effected when testator makes a will instituting the unworthy heir with knowledge of the cause of incapacity 2. cannot be revoked IMPLIED 1. 4. or attempted against their virtue. 5. reconciliation renders the disinheritance ineffective. or who supplants. Tacit Acceptance – 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 Tacit acceptance is presumed from certain acts of the heir as: 1. or assigns his right. Express Acceptance – one made in a public or private document. Under Art 1057. heir demands partition of the inheritance b. certainty of the death of the decedent 2. 2.Requisites: 1. donates. 3. he may later on accept as a testamentary heir. 1061-1077) .  Heir in two capacities: An heir who is such by will and by law. failure to signify acceptance or repudiation within 30 days after an order of distribution by the probate court. heir alienates some objects of the inheritance c. D.  Reason for formality: Law considers that the act of repudiation is more solemn than the act of acceptance and that repudiation produces a more violent and disturbing consequences. (3) The publicity required for repudiation is necessary for the protection of other heirs and also of creditors. Other acts of tacit acceptance a. (2) Repudiation is equivalent to an act of disposition and alienation. Repudiation: (1) Acceptance involves the confirmation of transmission of successional rights. When renunciation is in favor of all heirs indiscriminately for consideration 4. When heir renounces it for the benefit of one or more heirs. while repudiation renders such transmission ineffective. will be considered to have repudiated the inheritance as a legal heir. COLLATION (ARTS. 2. Form of Acceptance 1. But when an heir repudiates as a legal heir.  REPUDIATION must be made in a public instrument (acknowledged before a notary public) or authentic document (equivalent of an indubitable writing or a writing whose authenticity is admitted or proved) or by petition presented to the court having jurisdiction over the testamentary or intestate proceeding. certainty of the right to the inheritance Acceptance vs. and he repudiates the inheritance as a testamentary heir. When heir sells. Reduction – determining to what extent the donation will remain and to what extent it is excessive or inofficious. as no living person can be represented except in cases of disinheritance and incapacity. Grandchildren who survive with their uncles. or 1st cousins. When the testator should have so expressly provided. (Art. either actually or fictitiously. 4. Expenses for support.  GENERAL RULE: compulsory heirs  EXCEPTIONS: a. 1061)  An act of returning or restoring to the common mass of the estate. aunts. by way of donation. NOTE: Grandchildren may inherit from grandparent in their own right (i. and in the account of partition. in order that it may be computed in the determination of the legitime of each heir. OPERATIONS RELATED TO COLLATION 1. 2. Any property or right received by gratuitous title during the testator’s lifetime 2. who succeeds with other compulsory heirs must bring into the mass of the estate any property or right which he may received from the decedent. but which is understood for legal purposes as an advance from inheritance. medical attendance. education (elementary and secondary only). or customary gifts (Art. Absolutely no collation (all concepts): a. Imputing or Charging – crediting the donation as an advance on the legitime (if the donee is a compulsory heir) or on the free portion (if the donee is a stranger) 3. When the compulsory heir should have repudiated his inheritance 2. and inherit by right of representation.e. Generally not imputable to legitime: . any property which a person may have received from the decedent during the latter’s lifetime. heirs next in degree) and not by right of representation if their parent repudiates the inheritance of the grandparent. during the lifetime of the latter. ordinary equipment. even in extraordinary illness. In such case grandchildren are not obliged to bring to collation what their parent has received gratuitously from their grandparent) What to collate: 1. Persons obliged to collate 1. Collation – adding to the mass of the hereditary estate the value of the donation or gratuitous disposition 2. All that their parents would have brought to collation if alive Properties not subject to collation (2nd concept): 1. or any other gratuitous title. Restitution – return or payment of the excess to the mass of hereditary estate. and b. 1067). All that they may have received from the decedent during his lifetime 3. apprenticeship. Every compulsory heir. when the co-heirs agreed that the estate shall not be divided for a period not exceeding 10 years. 3. exchange. heirs themselves. decedent himself during his lifetime by an act inter vivos or by will. vocational or other career unless the parents so provide. 4. division and assignment of a thing held in common among those to whom it may belong. 2. voluntary heir. a. or unless they impair the legitime. Who can demand partition: 1. and legatees or devisees. clothing. Wedding gifts by parents and ascendants consisting of jewelry. Prohibition to Partition 1. compromise. PARTITION AND DISTRIBUTION OF ESTATE (ARTS. Even if a prohibition is imposed. . or any other transaction. 2. 4. 3. the excess is void. when prohibited by law. It is not subject to any form. 3. compulsory heir. when to partition the estate would render it unserviceable for the use for which it is intended. although it should purport to be a sale. 4. When partition cannot be demanded: (PAPU) 1. when expressly prohibited by the testator himself for a period not exceeding 20 years. Who may effect partition: 1. It includes every act which is intended to put an end to indivision among co-heirs. PARTITION INTER VIVOS (ART 1080)  It is one that merely allocates specific items or pieces of property on the basis of the proindiviso shares fixed by law or given under the will to heirs or successors. 3. competent court. b. any person who has acquired interest in the estate. legatee or devisee. 2. E. and outfit except when they exceed 1/10 of the sum disposable by will. the heirs by mutual agreement can still make the partition. The prohibition to partition for a period not exceeding 20 years can be imposed on the legitime. 3rd person designated by the decedent.Expenses incurred by parents in giving their children professional. renewable for another 10 years. If the prohibition to partition is for more than 20 years. 2. 1078 – 1105)  It is the separation. This partition.NOTE: Partition is not itself a mode of acquiring ownership. except perhaps when such dispositions are intended to take effect during the life of the testator and the formalities of donations are properly complied with. Dispositions. . necessitates relationship to the decedent (in case of intestacy) or a will duly probated (in case of testacy). nor a title therefore. however. to non-intestate heirs may suffer an impediment unless based on a valid will. being predicated on succession. A partition inter vivos made in favor of intestate heirs could be operative. A VOID WILL MAY BE A VALID PARTITION: 1.EFFECTS OF INCLUSION OF INTRUDER IN PARTITION: 1. If the will was in fact a partition. Between several true heirs and a mistaken heir – transmission to mistaken heir is VOID. and 2. 3. share of true heir is allotted to mistaken heir – partition shall not be rescinded unless there is bad faith or fraud on the part of the other persons interested. but the latter shall be proportionately obliged to pay the true heir of his share NOTE: partition with respect to the mistaken heir is VOID. If the beneficiaries in the void will were legal heirs. . 2. Between a true heir and several mistaken heirs – partition is VOID. Through error or mistake.