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28 June 2010
TESTAMENTARY SUCCESSION
In Art 779 Testamentary is defined as succession that results from…
Heir has to be designated in a document that is valid as a will. Nobody
becomes an heir in testatmentary succession unless the testator
executes has executed a will. If there is no will, there can be no
testamentary succession. To be testamentary heir, person point to a
valid will where his name is designated.
Suppose will does not designate an heir. May there be testamentary
succession? We have discussed last meeting that for document to be a
will, it must contain a disposition of property mortis causa and that
designation may be direct or indirect. Last meeting, for there to be
testamentary succession, there has to be a will, without which, there
can be no testa succession.
Testamentary succession results if heir is designated. What if no
designation? Will there be testa suxn, where will this happen, suppose
a testator left a disinheriting will. Contains nothing but disinheritance
of compulsory heir. None of property go to eldest son for having
attempted on my life. It disposed the share of son in favor of other
compulsory heirs but will there be testa suxn ? There is no testa suxn.
There is a will, but no testamentary succession. The properties of the
testator will be distributed as in intestacy. This is the reason why
intestacy is not defined in the code. Framers of code could not agree
on its definition. Some authors define it to mean, succession that
results when decedent dies without a valid will. Wrong. As in this
example, there is valid will yet his estate will be distributed in
intestacy. Inaccurate kasi ang definition sa 779.
The word heir used in 779 is general. Used in its general sense.
Anybody who will receive something from decedent mortis causa is an
heir. Basta tatanggap sha mortis cause from decedent, he is an heir.
Illustration: testator gave donation MC to a friend, the friend who will
receive something from decedent (the friend who’ll die in the future) is
he an heir? Yes he is. Because DMC is succession, it’s a will. Pag
gumagawa kayo ng DMC, will yan. Kaya favorite yan ng bar exams sa
forms. It must be executed as a will for DMC to be valid. Therefore,
Donee in a DMC is an heir because he’ll receive something from
decedent in ___.
Difference between DIV and DMC.
Eva <3 Ron, sired two children. Ron says “in order for my children to
save on taxes, I’d rather give them my properties while I’m still alive.”
So he made this kind of document: “To my children, I give my property
located in Greenhills, SJ, consisting of 2 adjacent lots of equal area.
However, they shall take possession and ownership of my property
only when I die.”
o
2.
If he is given the entire estate or an aliquot part thereof

“Aliquot part” – portion, but we don’t know what
properties comprise that portion. Basta yung value you
are entitled to receive is certain e.g. ½ of the properties
o If you are given the entire estate, or instituted as sole and
universal heir
Legatee or devisee
o Legatee - gift of specific movable (legacy)
o Devisee- gift of specific immovable (devisee)
Juridical basis of testamentary succession
Allow person to control the disposition of his estate beyond the grave.
Nasa ilalim na sha pero sinusunod pa rin natin.
Will, pero how can a dead person have will?
Why do we allow a person to dispose his estate after his death? In
reality, this is not dispo after death, it is before his death except it is
made subject ot a condition. During his lifetime, he is entitled to
dispose his property subject to conditions. He can choose future event
to effect his disposition, why can’t it be his death. To some legal
philosophers therefore, succession is a mere species of disposition
subject to disposition. That is the juridical nature of testamentary
succession.
Characteristics of a will




1. Purely statutory
Means that a person is allowed to make a will simply because law
allows him to make one.
To bring discussion to extreme, may congress pass/enact a law
abolishing provisions on wills and succession? Yes! That’s why in
communist countries where private ownership is not allowed,
institution of laws succession and will become irrelevant.
When that happens where does law left behind go? Regalian
doctrine, revert to the state
Will is only enforced by the court because of the law. Absent that
legal command on the court to implement the will, everything is
just a request.
No longer discuss everything kasi madadaanan naman natin yan. Wala
na naman pasok sa Wednesday, sayang ang one hour.
Interpretation of wills
1.

If provisions of will are susceptible of being interpreted in
different ways. Which manner shall prevail? Go to A788.
Presumption is that testator left a will for it to be interpreted.
2.
Smartmatic class. Let’s put it to a vote. It’s inter vivos because there is
difference between perfection and delivery of the ownership. For as
long as the contract is perfected during lifetime of donor, it is IV
although possession or ownership is withheld. Pero the contract is
already perfected. What if delivery lang?
Pero kung “take effect” ang condition kapag namatay sha? -- DMC
Incidence of the contract are made subject to the condition – DIV
Two kinds of heir: The importance of this distinction is in preterition.
1. Instituted heir

Two kinds of ambiguities in will:
a. Patent or extrinsic (how to pronounce patent? Pilipino
tayo, so short a.)
Ambiguity disclosed by the very words of the will.
E.g. I live my house to some of the 6 children of my
brother Juan. Ilan dun sa anim ang bibigyan?
b. Latent or intrinsic
Cannot be discovered by mere reading of provision
but when factual cirucsmtances are considered
E.g. “I give house to cousin Pedro.” But what if
there are 2 cousins, ambiguity becomes manifest
because of surrounding factual circumstances.
How to resolve? Caguioa says:
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a.
b.
c.
Latent: same kind of evidence except oral. I.e.
evidence outside body of provision
Patent: same kind of evidence e.g. within the
words of the will, you can’t go outside. Disclosed by
very words of the will
Theory of old writers is to cure ambiguity by same
kind of evidence the ambiguity is disclosed, pero
tinanggal na yan lahat ng 789
Art 789: “upon the face” means patent, “within the words”
Tinanggal ng CC yung type of evidence that can cure type of ambiguity.
All kinds are now admissible except oral declaration by the testator.
3.
4.
5.
790 madali na yan
791 give effect to everything
794: apply the ordinary rules on accession sa property.
accessory follows the principal. He who owns the principal
owns the accessory. E.g. house standing on a piece of land,
whoever owns the land, owns the building.
Exception: principal follows the accession. FC in the “reverse
accession” in property relations between husband and wife,
CPG. Bagong rule na yan, sa NCC regardless of value.
Bobo na kayooooo! You want more proof? Madami pa yan.
General rule: Magkasamang ibibigay yung bahay.
Unless: sinabi niyang magkaiba ang pagbibigyan ng bahay at lupa.
Law governing form
There are two aspects of will: [1] form and [2] content/substance
1. FORM: manner on how will was written/executed
Sino ba nakapirma, pano pinirmahan
2. CONTENT: yung nakasulat; e.g. Ron leaving half of his
property to mistress Miss Ausan
FORM MUNA:
Question: If Mr. Garcia will execute his will, what law must he comply
in order for the will to be valid? Law at the time he executed will or
must will comply with requirements of will at the time of his death?
Answer: A795. Time of execution. Kasi kung patay ka na, pano ka pa
magcocomply.
Concrete example: Today, Ron will execute his will after class. Under
the NCC, law requires at least 3 witness, for his notarial will to be valid.
Kayong tatlong lady gaga (Jam, Eds and Ani), kayo witness ko dito. Year
after he made that, congress increased the number required. Apat na.
Despite passage of new law, Ron did not bother to change his will.
Ayoko na nabayaran ko na si Atty jan, nanotaryohan na, so di na niya
binago, when he died, lumabas yung will pero tatlo lang testigo.
Is his will still a valid will? There is no question that at the time it was
executed, it was valid, at the time law enforce require only three. YES,
it is still valid. Why? Dahil sa A795.
What if A795 was also repealed? A4 pero kasi “expressly provided”
suppose law provides for retroactive application, does it also mean
retroactive effect in all cases? Retro application not allowed when it
will impair vested rights and constitutional right to impairment of
obligation of contracts. (Alameda, Velasco, Arias) Convinced na kayong
bobo kayo?
Even when the law does not provide for retroactive application, it will
nonetheless be allowed in what cases? Intention is to make it curative
statute, criminal statutes that is more favorable to accused, procedural
in nature because it’s colorless (i.e. does not impair any vested right)
In re will of Riosa (for the first example)
After Mr. Garcia has executed his will, he acquires a vested right? On
what? On the continuing validity of his will which cannot be impaired
by a retroactive application of a law amending he complied with in
executing his will.
How about the reveerse? Today Ron made a will, requested 3 of
friends to act as witnesses, unfortunately, one of the friends were
disqualified from witnessing a will. (e.g. less than 18) 15 lang si Eds. If
he dies today and submitted for probate, it will definitely deny for
failure to comply with requirement of 3 witnesses. Hindi pa
namamatay si Garcia, year after execution of will, congress lowered
the number of witnesses to two. So when he died, the law only
requires two witnesses. Has the change in the law validated the will?
No, because of A795. But what if 795 is itself repealed, will you answer
be the same? The same pa rin yun. Ano reason? Invalid will becomes
valid at the time of death? Has somebody acquired vested right to the
invalidity of the will. Definitely not the disposed heirs dahil inchoate
lang sila. Wala jan sa syllabus niyo. For the same reason, it will amount
to impairment of vested rights.
RULE AS TO FORM: Law that governs validity of contract, law in force
at the time of execution of the will. Not the law in force at the time of
death of testator.
AS TO PLACE OF EXECUTION:
What law governs as to form:
Example: A British subject was assigned by his company to be a
regional operations manager of SE Asia, his office is situated in HK.
Countries included in his jurisdiction are Japan, Phil, Malaysia,
Indonesia and SG but his base is HK. As ROM he is required to visit all
branches in those countries and confer with officers of company
stationed in those branches. Makes rounds of these branches
regularly. Para shang si Rizal, may gf sa Jpaan, pag pinas, may GF sa
Mnaila. Ano tawag sa misis mo? Ron says asawa. Mashado kang
bulgar!!! Maybahay ang asawa, pero pag mistress, maycondo. So he
won’t be bored in Malaysia and Jakarta. Para shang si Rizal.
One day in Tokyo, he suffered mild heart attack. While recuperating in
hospital, he was seized of this fear of dying, to prepare for his eventual
death, he executed a will in Tokyo. I want to execute my lawyer!
Japanese lawyers: Pwede pwede we will execute will in Japan. What
law must he observe for the will to be a valid will? Supposing executed
in Tokyo observing formalities required under Jap law, but survived
heart attack in Tokyo. Nung nakita si maycondo, this is my will. When
something happens to me, this is how you distribute my properties.
You probate it sabi ni British subject.
Pano pag sa Indonesia namatay, nandito yung will, executed in
accordance with formalties prescribed under Jap law, susubmit ngayon
ni mistress sa Phil court for probate? Issue: Is the will valid as to form?
If you were the Filipino judge, how do you rule the issue. Is it valid as to
form? Ano ba sinusunod nating rule sa Pinas: “lex loci celebrationis”
Locus means “path” or “place” – law of the place of celebration, where
it was executed. But that’s the general rule and there are exceptions to
it:
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A817 – general rule
A816 – if you read ‘em all, how do we sum up? When the foreigner is
in the Phil, he may observe law of country which he is citizen (A817) –
lex nationalii. Eh nasa PInas sha at foreigner sha, at Fno lawyer so ang
inobserve ay Fno law. What if British subject, executed in manila under
Phil law? What law apply in determining formal validity? Yes applying
GR A817. Law of place of celebration.
Suppose foreigner is abroad like in first example, British in Tokyo, what
law must british subject executed in Tokyo for it to be valid in Phil. We
apply here conflict rules (PRIL) A817 ang sagot. May observe Jap law in
executing will.
May he observe HK law (place of domicile) in executing will in Tokyo
(Yes because of A816)
May he observe UK law for will to be validly executed in Tokyo (yes
A816 law of country)
May he observe Phil law in executing will in Tokyo because subject for
probate in Phil court (Bakit napasok ang Phil law? I have 4 students
now in Japan, lawyering. Not Jap law but Phil law in Japan. Lahat
kayang gawin basta me bayad.) Yes under A816 when foreigner abroad
may observe Phil in execution of his will.
What if Phil citizen?
Suppose son of Phil ambassador to UN in NY studied law in NYU sa
Manhattan for tax laws. NY bar. Easiest bar ang NY bar, most difficult is
California bar. Remained natural born, never applied for naturalization.
After grad and passing NY bar, come home for extended vacation with
relatives. While in Boracay, he almost drowned. While in hospital
recovering from drowning, thinking he was about to kick the bucket,
he made a will. But since NY lawyer, wrote will in accordance with NY
Law. True to his premonition, he died in the hospital. Now submitted
for probate in Phil court? May the will be allowed probate? No, not
allowed probate. Remember this: A Fino in the Phil may observe only
one law for it to be valid. Phil law. Yun lang ang pwede niya gamitin.
What if he is abroad what can he use? A817 lex loci celeb. But when he
is abroad, may he execute in accordance with Phil law: Law is silent.
Pagkukulang ng batas, see Tolentino’s comment. Walang nakalagay
kung ano mangyayari. Agree si Sir kay Arthur. Di naman tama na di
natin payagan. Kung yung punyetang British subject pinayagan natin,
pano pa kaya yung citizen natin. Otherwise, violation yan ng equal
protection. He is treated a second class citizen in his own land.
Joint will not allowed in the Phil. What is it ba? Nagkatuluyan si
Gutierrez at Garcia. Imbitahan niyo ako pag nagkatuluyan kayo.
Nabuntis na ni Garcia. Tumatahimik si Ron, uuuy taking it seriously.
Gawa tayo ng will natin. Pirma na you para same tayo will. Is that
allowed? Nope.
Just to be sure you know when a will is joint. Gumawa si Ron ng will,
nakita ni wife. Kinopya niya word for word except for names, adjusted
to make her will. Joint wil bay un? Nope. Identical ≠ joint. Two
separate wills may be identical.
Miss Baviera teacher naming yan. Di sha pinagreretire kasi ayaw niya.
You will acquire the right frame of mind through Ms. Baviera.
Principles behind the law: What is the reason behind the law? That is
the bearing. The only will that will remain invalid even if valid where it
made executed. Pinakagwapo si Ron sa Timbuktu, joint will with
Princess wife na may buto sa buhok ay valid. Not valid in the Phil, even
if valid there. Public policy against joint will. Why? What is the public
policy? Hindi lang spouses yan ha, basta dalawa. Encourage parricide.
Ang layo diba? Bakit parricide? Pag-isipan niyo. We continue next
meeting. Next week because of Binoynoy’s inauguration.
5 July 2010
Why prohibit joint will? In my opinion, that will also hold true even if
the will is not joint. It will tempt the person who requested the will to
commit murder.
As to form: only joint wills are prohibited even though they are
executed abroad. Look at Art 819: “prohibited preceding article” 
covers only joint wills. E.g. execute joint will in Timbukto and come
back here in the Phil. It will not be probated. Invalid if the spouses are
both Filipino citizens. Suppose one of the spouses to the jint will was a
foreigner and they came home to the Phil and one of them died and
then submitted to Phil court for probate? Will the Phil court allow the
probate of joint will of foreigner and Filipino? SC has already answer
this before. If the country of the foreigner spouse allows a joint will,
the joint will shall be valid insofar as foreigner is concerned but invalid
insofar as Fno spouse is concerned. Some writers disagree in such a
ruling of SC but until SC has found or issued another ruling that is
convincing, this decision stands.
Take note that these are conflict rules with foreign element: whenever
several laws applicable, conflict rules will only be applied if will is
before Phil court being asked to admit the will to probate. Otherwise,
no room for application of conflict rules unless it is before judge in
another jurisdiction country where renvoiz may be requested to apply.
Conflict room of the forum, dun lang iaapply nung foreign judge yung
Phil rule. This is only material if the will is before a Phil court and judge
for probate.
Law governing content
AS TO TIME: Valid at the time of death of testator - whether or not
valid as to substance: time of testator’s death, not the time of
execution of the will.
AS TO SUCCESIONAL RIGHTS: determined by law enforced at the time
of testator’s death.
Miciano v Brimo: Turkish national executed will, Phil law as to form.
Provision: any of my heirs who will contest the validity of this will shall
do so at the expense of losing his inheritance. One did not agree and
filed a case in court contesting validity of the will.
SC held through Romualdez: In the absence of any proof as to what is
provided in Turkish law, apply processual presumption. The same laws
in case of absence of information. The provision in the will is simply
illegal.
Cayetano v Leonidas: Fino Nurse migrated to US, pinamanahan yung
niece (buti hindi yung DI). Submitted to Court for probate. Disregarded
some of compulsory heirs. Court: we don’t apply Phil law because at
the time of her death, she was already a US citizen by naturalization.
American law has no system of legitimes.
 We’ll have problem here in terms of dual citizenship.
Gumawa ng will niya pero namatay. Ano iaapply? Isa yan sa
loopholes ng dual citizenship law. Niraise ko yan nung
ginagawa yung law but they were rushing to pass it to get the
overseas filipinos votes.
 May the testator choose which law governs the disposition of
his estate when he dies? Do we allow that? Wala pang
parameters.
 Problem din sa persons.
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 Drilon: It should only apply for political matters. (suffrage)
Yung owning of land, political ba yun. Mahihina yung
nandun.
 Circular No. 1 ginoma-goma pa. Di UP grad. Pwede sila
makasuhan ng falsification of public documents dun.
Reporting something as not an official act. In that split
second, someone might have acquired a vested right,
therefore constitutional right violation. So dapat inamend
nila yun.
REQUISITES FOR A VALID WILL
1.
2.
3.
4.
Testamentary capacity
Animus testandi
Compliance with formalities or solemnities
a. General
b. Specific: Depends on whether
i. Notarial
ii. Holographic
Free and voluntary act
TESTAMENTARY CAPACITY
Elements of capacity:
a. Age
How old? Not less than 18 years of age.
What happens when 16 years old, what is the status of the will? Let’s
draw some parallelism.

In case of contract, when minor enters into contract?
Voidable. Consent of one of parties is vitiated. Only the party
who was incapacitated may bring an action for annulment.
Only the minor may bring action for annulment.

In case of two minors: unenforceable Art 1403 (3)
What is the status of the will? Either void or valid. Dalawa lang yan.
Walang rescibble, unenforceable or voidable will.
Invalid if it did not possess all the requisites of a valid will. Basta isa jan
wala, void ang will.
Suppose the 16 year old testator ratified his will when he was already
20? Has the will been validated by such ratification? It depends. Why?
We will learn this in “republication.” Nandun ang tamang sagot.
I was born 14 Feb 1960. On 12 Feb 1978, I executed a will. Is the will
valid? YES! Take note we don’t reckon age of person by calendar years.
A year is 365 days. No qualification as to leap or ordinary year. At least
3 leap years yan. Masesetback yung 18th year ko by at least 3 days. CC
mode of computation Art. 13.
When I am 18 years old. Must the entire 24 hours lapse before I am
considered 18? Or the start is enough to consider me 18? 2 rules yan.
Yung Spanish and American rule. Spanish: kailangan matapos lahat ng
24 hours ng day before your 18th year (not birthday). Sa American law,
pag nagstart na ang midnight, yun na yun. Considered as completed.
Walang midday fractional. May 0 year ba?
Sa pinas, what do we apply. But it looks like we apply Spanish. Matapos
yung 24 hours ng eve. 18th year must have started. Di magiging kaso
yan kasi isang araw lang.
b.
Absence of express disqualification
Underline the word “express.” For somebody to be disqualified, it must
be expressly disqualified. He is always presumed qualified.
Only one person is exempted if you look at the rules: person below 18.
Expressly disqualified yun.
c. Soundness of mind
Almost always element of legal capacity. In PFR, it is an element of a
valid marriage, for instance. When insane marries, what is the status?
Voidable. Not capable of giving full consent to the marriage. Who may
file? Insane party lang. Pwede ba shang magfile ng kaso? Sane spouse.
Kung nalaman ko lang sira pala ulo mo, di kita papakasalan. Only after
celebration of marriage. Kung alam niyang baliw, hindi sha aggrieved
party. Dun nga sila kinasal sa mental chapel. No legal capacity to file
action for annulment because he knew that he was insane. Insane
spouse: Kaya nga ako nagpakasal sayo kasi sira ulo ko!
Suppose two insane people got married: parehong sira ulo. Sira ulo rin
yung pari. Voidable pa rin. Si Justice Paras lang nagsasabi na void yan.
Pareho silang defective ang consent, pero hindi totally absent. We
prescribe book written by Paras to criticize it. Marami shang
questionable positions.
Is the definition of soundness of mind for purposes of marriage,
contract and crime the same in making a will? NO. law tells us what
constitutes soundness of mind. San nakalagay yun? A799. To be of
sound mind… NOT NECESSARY that…: SUFFICIENT that he is able to
know…:
1. Nature of estate to be disposed of
Itong si Garcia namatay. Tong gf niyang si Eva, tiningnan yung gamit sa
locker. Nakakita sha ng will. Nakalagay dun: I, Ron Michael Garcia of
sound disposing mind, with the blessing of God to hereby publish the ff
as my last will and testament:
a. To my partner in life Eva Gutierez, I hereby give the QC
Memorial Circle
b. To Chi, the Luneta Grandstand
c. To Cams, the UP College of Law.
Res ipsa loquitur. May sayad yang mamang yan!!! Di mo na kailangang
mag-isip. He doesn’t know nature of his estate he shall dispose in his
will. Property nang may property yung dinidispose niya. Though you’ll
find out later that he may dispose even if he does not own it, so order
executor to acquire of property. Bilhan mo ng condo unit sa Alexandra
si Eva. Kulang na lang ipamigay ang Malacanang Arlegui house.
2. Proper objects of his bounty
Suppose ganito, namatay ang self-made man. Dami pera! Nobody
knows how he earned that money. ½ of all my wealth, in the interest of
justice, to Batman and Darna. Res ipsa loquitur din. Doesn’t know
proper objects of bounty. No physical existence. Though you’ll find out
hindi necessarily you know person you’re giving to. Pwede nga
complete stranger. I hereby give legacy of 10M to first Filipino who
will win gold in the next Olympiad. Maeestablish naman identity nun.
San ba gagawin yun? London. Natalo kasi ang France.
3. Character of his testamentary act
To my bestfriend, Mr. Tnesuan absent no, I give my fav rolex watch but
pay 100,000 for it. Mejo may sayad din. Mana ito, hindi dapat
binabayaran. Essentially gratuitous. No matter how we look at it. May
sayad ka, sir. Res ipsa loquitur.
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When not of a sound mind, the will becomes invalid. Not voidable. The
testator did not have requisite capacity to execute a valid will. I’m sure
you have learned in PFR that capacity of natural person is presumed.
Standard Oil v Arenas. He who alleges that person has no legal capacity
must prove it. In the absence of such proof, the presumption that
natural person has capacity shall prevail.
Presumption is reversed (burden of proof is shifted). Art 800, 2nd Par.
Problem: How do we know she is publicly known to be insane.
Halimbawa yung favorite niyong senador na kung tawagin ay Brenda.
When is publicly known as insane? Confine to mental institution,
asylum or sanitarium. Halimbawa may bag lady. Lakad ng lakad si Eva
taong grasa, namatay bigla. Ang daming pera nung binulatlat! Dami
niyang napulot. Nobody suspected that the bale she was carrying on
her head was a bale of money. There’s no case and there’s no
precedent, no other law which tells us when an insane is publicly
known as insane. Ergo, it will now upon the sound discretion of judge
to determine WON a testator is publicly known as insane 1 month or
less before making of will.
Supervening incapacity
Sane at the time of the will but became insane later on.
ANIMUS TESTANDI
Made with the purpose and intention to make it his last will and
testament. Manolo Quezon, umakyat nang paluhod sa Malacanang,
walang historical basis. On the eve, relatives of Rizal went into hiding.
Pero bago sila nagtago, 2 sisters of rizal, Concepcion went to Fort
Santiago to visit Rizal. There, Rizal had personal effects coz he lived
there for months. Waited for his trial and during his trial. Caliente
adrrada, his lawyer. Witnesses represented. Pio Valenzuela. Bottle still
there, damit and writing materials. Kept after his execution in 3 or 4
chests. They became national relics overnight when Americans
proclaimed him as hero. Raging controversy WON he should be our
national hero. Heir to fortune left behind by his landed parents. Pano
yung mga shares niya jan. May isa shang anak by Josephine Bracken,
but he died during infancy so wala shang bloodline unlike Jesus Christ
who according to da vinci code has bloodline by mary Magdalene.
House of Lauren in France. The roselins of Scotland. Bat ba tayo
napunta dun. Some of these relatives were claiming those properties
left behind by rizal by inheritance. Outside na kayo sa recognized as
heirs, kasi walang will. He left a will daw! Yung mi ultimo adios. It’s only
a title we gave to the manuscript. Walang title yun. He gave hint to his
sister that something was there in the oil lamp. Copied (kasi wala pang
Xerox). One copy on lap of Andres who translated to Tagalog and it
was reproduced on day of his execution. It’s a work in verse poem,
parang poem. Versos Alejandrinos. Perfect meter, perfect rhyme. 14
syllables. Suspicion that this had been in his mind, months before
execution and wrote it before his execution. Holographic will ito!
Written, signed and dated by him.
and warmth of your breath. WILL BA YON!?!? PARANG WALA YATANG
WILL DUN. When my tomb is forgotten by everyone, mark the place.
Are is hope. Let the hope of a man till it with a shovel so that it will be
disperse. Parang yung abo sa creamtion. Dig it up and till it. Get my ash
and scatter so it will form the powder. Polvo. Alpombra is carpet.
Mi Ultimo Adios is not a will. Rizal did not have intention to have that
document his last will and testatment. It’s an expression of Rizal’s
sentiment for his countrymen on the eve of his execution. That’s his
only purpose. Fo rhis countrymen to know what his sentiments were
on the eve of his execution. Kung dun sa last verse niya: Dulce
stranger. Josephine Bracken. Sweet Stranger. E di kasama rin sha sa
heredera. Mystery what happened to her. She just vanished. She went
back to Scotland.
That’s not a will because there was no animus testandi.
COMPLIANCE WITH FORMALITIES OR SOLEMNITIES
You’ll have to follow a protocol/formula in executing a will. If these
formalities were not complied with, will is invalid. Why? Kasi patay na
sha, mahirap tanungin. Baka mamaya, the will being passed on is a
forgery. Baka naman ang gumawa niyan eh one of the heirs at finorge
ang pirma ni testator. The law allows will to be implemented by court
action. The law allows it only if the will is indeed that of the decedent.
Therefore, the law has to provide safeguards to ensure that will being
passed on to us is indeed the will of the decedent testator. Ensure and
somehow help ensure the genuiness of will, the law prescribes certain
solemnities that must follow. Otherwise, there arises presumption that
will was not that of the testator or he did not have soundness of mind
at the time of execution.
VOLUNTARY ACT
Hindi pwedeng pinilit, niloko kasi kung niloko, pinaprima sa blank piece
of paper, hindi valid yung will. Kasi hindi sha voluntary act. Tinutukan
ng baril ni Eva si Ron: kumuha kang lapis at papel. Bibigay mo sakin
lahat kung indi barili kita!
Pano kung sabi ni Ron, kalabit si Eva. Amoy pinipig ka. San galing yun?
Sa john en Marsha yun. Shows age. Yung mga bata lalabas sa kwarto.
Op op op, walang kakain ng pinipig unless pripirmahan mo ito. Ano
tawag jan: PLAIN AND SIMPLE BLACKMAIL!!! Dahil gusto niya kumain
ng pinipig, pinirmahan niya. Masarap yan kasi malutong sa halo-halo.
Baka hindi sha free and voluntary.
For threat to vitiate the consent of testator, it must be enough injury
to cost him his life for him OR the threat must be believable. Kukurutin
kita til you die! Di yan believable, sufficient to vitiate consent of
testatrix.
Yung last two na lang ang ididiscuss natin in detail.
What do you look for in a will to determine won it is a will. Disposition
of property, mortis cause. Yung last verse po! Kami po yung relatives.
Rizal was more than 18. 33 sha when he died. May animus testandi ba?
24 units of Spanish. Tierra. Marcha etc Filipina. Music by Julian Felipe.
Lyrics by Felipe Calderon. Rafael Palma. Charles something. Is mi
ultimo adios a will? And sir recites it in Spanish. O_o Really nice line I
loved. Sobre dadfaka; mia. Entre las yerba scintilla flor. If one day on
my tomb, you will see sprouting wild grass in the midst. Milde flor.
Humble flower. Bring it to your lips, to my soul. Frente forehead.
Ternura warm soplo rest haplos. Warmth of your breath halitor kaya
nga halitosis. And let your forehead Feel the tenderness of your caress
FORMAL REQUISITES  Apply to all kinds of will.
A. General Solemnities
GENERAL
1. In writing
Is there definition of what writing is? Standard English definition
dictionary has it. Did you bother to look? Lagi kayo dapat nag-iisip?
Problems as to implementation. What do we mean by writing?
Page 6 of 63
Mr. Garcia is Chinese pala. Kaso ayaw niya ng monosyllabic surname.
So ginamit niya yung name ng sponsor. Sakia Academy and Grace
Christian. Marunong magchinese characters. Submitted to Fino judge
for probate? Valid ba ang will in Chinese characters? Of course, it’s a
form of writing. Egyptian hieroglyphics. Or writing of Aryans.
Charlemagne pursuit. Higante, blue eyes. Lost race. Napunta ata sila sa
Antarctica. May rosette stone to decipher ito. Ginawa niya yung code
niya. The bible is written in codes parang da Vinci code to convey a
secret message. Wrote will in that code. It’s certainly a form of writing.
Mr. Garcia, yumaman, dami dami will ko. Record digitally through a
camera, nirecord niya ang last will and testament. Non-recordable disc.
Is that writing? How do you define writing? Normally, ang definition
niyan ay set of symbols, whose meaning may be perceived by a sense
of sight. Not like mahjong. Di pa sinasalat mo yan. Hindi mo tinitingnan
pero alam mo yung baraha. Braille for instance. Device invented by
Braille to allow blind people to read. Letters represented by embossed
dots. So kinakapa at sinasalat ng bulag. Configuration of dots on
writing material will make him perceive. Di naman sense of sight yung
nagpeperceive din. Sa record, hindi naman mata or hipo, but hipo yung
magsasabi ng last will and testament. Nobody will question yung
Braille though not perceived by sense of sight. Person who is not a
blind man e.g. the one who makes transcription can see.
Say: pwedeng gawan ng transcript. Pwede bang maging will yun?
Those are the issues involved in determining won document is in
writing. Not to mention the material. Pwede bang nakasulat sa wall of
the prison? To present that as exhibit, gigibain yung prison or judge
will ocular inspection. Pwede sa cloth, pero not sa tubig. Pang-utang
lang yun. With the advent of technology, the issue of what constitutes
writing has arisen. Later on, you’ll find out, even if digital recording
qualify as writing, it’s not a will because cannot comply at the specific
requirements. The writing must be a document.
28 June 2010
1. In a language known to testator
Why? Ensure that what was written was what was intended. If the will
was written not known to the testator, how was he to know that what
was written there was what he intended? Interpreter – not accurate.
There will be a big gap between what was written and the meaning of
interpreted words. And so the law to prevent fraud against the
testator, requires that it be written in a language known to testator.
Does “in writing” requirement mean illiterate people can’t make will?
No. if you see in code, there’s no requirement that literate. But there is
an additional safeguard/requirement for illiterate.
How? Somebody will write the will for him.
He can’t read, how to know if he agrees with the content? Then ask
that person to read it aloud to him.
If written in language not known to him, there’s a second step. On the
other hand, if language known to him, all that needs to be done is to
read it. To know that he is not being defrauded, call another person to
read it. Easy for him to check whether what was written is what he
desired to be written.
Suppose: Garcia comes from Ilocos (GI), genuine Ilocano. Eva Gutierrez
Ibatan. AY Garcia, Ilonggo ka na lang. So you proposed to Eva after you
pass the bar. Uuwi tayo sa Batanes. Serve my people there. Eh true
love. TL. So Ron accepted the condition and they went to Batanes and
they lived there til old and grey. Namatay si Ron. After he died, there’s
a will in one of his drawers in his room captioned Last Will and
Testament in Yvatan. Sabi ngayon ngkamag-anak ni Ron, that will is
invalid because our brother is Ilonggo. He didn’t know Yvatan dialect,
so it wasn’t written by him. Must have been written by somebody else.
Notarial will in Yvatan. Is the will a valid will?
There’s a case assigned: Abangan v Abangan. He is presumed to know
the language/dialect of place where he habitually resided during his
lifetime.
There is a presumption, so since Ilonggo Garcia resided in Basco,
Batanes and it became his habitual residence/domicile, under the law
he is presumed to know the language of the place. He is presumed to
know Yvatan. That presumption however is not conclusive but merely
rebuttable. He who alleges that despite long years in Batanes, Ron
never learned the dialect, has to prove it. It’s gonna be a matter of
evidence. what evidence may be akin to use to prove that he did not
learn it.
Suroza v Honrado: Merong gumawa ng will in English. Ano nakalagay sa
first paragraph of “sound disposing mind hereby publish this will” sa
dulo nakalagay: the foregoing is my last will and testament, it was
translated to me in the native language. If he knew the English
language, what was the need for translation. The very will provided
evidence that he did not know the language tht the will was written.
Tiyak na hindi UP Law grad yun. Gagawa ng krimen, may iniwanang
ebidinsiya.
B. Specific solemnities
Depends on:
a. Notarial/Ordinary/Attested
i.
Ordinary
ii.
Special
b. Holographic
Parang halo-halo at siopao lang yan. Ron, ano nilalagay pag special
halohalo? Icecream? No! Leche flan!
Why notarial? If you look at CC provision, walang special name givne.
So many writers have ascribed many different names. Some call it an
“ordinary will” some attested will if you are under Prfo. Balane. That’s
how he calls it. Caguioa calls it “notarial” Nootarial na lang para mas
precise.
Have you checked English dictionary: is there an entry for
“holographic”. It’s from Spanish holografico. Shempre silent H. Teacher
ko sa engineering, sinasabi sa English. Naubusan sha ng English,
“pukpokized”. Sin of reporters: English to Spanish.
For this will to be valid, intervention of notary public is necessary. It
must be notarized otherwise, not valid.
What are the ordinary requirements for valid notarial will?
Embodied in 805 and 806. When I was student, Sir Balane asks us to
recite it. Justice Puno: habang jumijingle recite.
805: specific ordinary requirements. Minority na ayaw mag-JD. BA lang
ang degree Oxford. Gumaya tayo sa Ateneo, gaya-gaya tayo.
Page 7 of 63
May the testator in the very will, provide for a waiver in complying
with specific requirements? I hereby publish my last will and
testament. Desire not to follow the formalities prescribed by law. May
the very will provide waiver? May the testator waive compliance with
the specific requirements? NO, the testator cannot waive compliance
with specific formalities. Compliance with these specific formalities is
MANDATORY. Kasi nga di natin alam kung sha gumawa. Baka nga kaya
winewaive kasi hindi sha gumawa kaya kapag winaive hindi sila
makakacomply kasi they’re not the testators.
Reason behind formalities: close the door against bad faith and fraud.
To avoid forgeries and substitution of wills and guarantee the
voluntariness of the acts.
WHAT ARE THESE SPECIFIC FORMALITIES?
1. Every will, other than holographic, must be subscribed at
the end thereof.
What is not ordinary in that phrase? Subscribed. What do you mean by
subscribed? Assume I want to be assured supply of water and
newspaper, I subscribe. Oh I subscribe to that idea! In this context,
what does subscribe mean? Sub means under and script means write.
So “write under”! Nung araw, wala pang computers and gadgets to
facilitate communication, if businessman wants to have buyers of
newspaper, naglilibot sha ng papel. Sa papel nakakaanounce we intend
to publish newspaper for community, if you agree or support this
project, pay this much and then write your name under. Ergo,
subscribe. Kaya subscribe to the newspaper, sulat sa ilalim ng paper.
As used in wills, subscribe means sign or affix one’s signature. Yun ang
meaning nya.
Law therefore requires will to be signed by testator.
What is the purpose behind this requirement:
a. Authentication. Express authorship of the document by
signing the document, the testator admits authorship.
That document was my act. Import of somebody signing
a document. Claiming authorship of the act.
b. Identification. After the death of testator: identify the
document. “Kay Mr. Garcia yan, pirma niya yan eh!”
What signature is needed? How must testator sign in order to comply
with this requirement? Initials? Nickname? Last name? Screen name if
he is a celebrity or movie star? May he sign with his alias? Nome de
gooier, nome de plume? Rizal: Dimasalang (Masonic name wala shang
nome de guier?) Marcelo del Pilar: Plaridel. Wow literate kayo.
How must he sign?
What if Ron does this: RON GARCIA (block prints) or in Ron Garcia (in
script) or in pirmang di maintindihan, artful may pabalik balik pa.
Any mark will do in executing his last will and testament. Pwede niyang
imispell parang si Barbra pero sa birth cert niya Barbara yun. Ang
kuleet. Binar yung bra. Braless yung dating. So maski misspelled yan.
Yung mga tumatanda, pati spelling ng pangalann nila nakakalimutan
nila. May mga kliyente akong nalilimutan yung spelling. For so long as
they affix the name, signature, mark with the intention to use that in
executing last will and testament, that is a valid and sufficient
signature.
How about a thumbmark? May a noreadnowrite testator sign his will
with a thumbmark? Yes and there’s a case assigned in the syllabus.
Matias v Salud.
But suppose the testator was very literate. He even has PhD. But at his
death, there’s a will but it was only signed by his thumbmark. Will that
be a vlaid signature for the purpose of being a will? Yes! It’s still a
mark! And as long as he intended it to be his signature, it’s still valid
signature.
How about if it was a mere cross? Is that a sufficient signature? In
Abaya v Salamero, SC held that if it was intended by testator to be his
signature in last will and testament, it is sufficient. How we establish
the intention is a matter of proof. However in Garcia v Laceusta, SC
qualified Abaya v Salamero. Insufficient if it is not usual way he signs
his name during his lifetime. And if it appears that he is literate it is not
sufficient. Kailangan ipakita “it’s one the ways he signs” Baka kasi
implication ng cross ay ayaw kong pirmahan. Kaya nga di ko chineck
eh. Abaya was not abandoned in Garcia. Important: Proof of intention.
Where must the testator sign? Provisions says at the end of the will.
What will be the question you should ask yourselves? Where is the end
of the will?
Problema bay un? Kung kayo ay imaginative, problema yun.
Halimbawa iisa lang bond paper niya. “Nagsulat sha jan. nagsulat…
nagsulat… Nako kinapos!!! Nilagyan tuloy ng arrow.” Where must he
sign? Logical end
1. Physical end: point in space farthest from beginning of the
will.
2. Logical end: where the dispositions end. Kung san sha
natapos mag-dispose.
In this example, the testator should sign here. “ROOOOON.”

Daf;adjaf;dfa;dfkja;djkfa;df;a
Signed: Ron
Date
dkfaj;dfkad;jfka;dfdfaj;fadkfj;adj;adkfa;djfkad;fakdf;adkjfadjkfadfadadfadfad
fadfadfadkdjf;; 
What if testator has no hands? Halimbawa si Ron naaksidente,
makakapirma bay an? Sir yung paa niya. Pwede kung natutunan niyang
sumulat at pumirma using his feet or mouth while biting the pen, then
he can do so. Wala na kasi shang thumbmark, pano yung toemark?
Valid ba kung hinlalaki ng paa niya. Any mark!!! Intended by him to be
his signature will suffice. Nakakahiya naman. Suppose di sha natuto.
Does it mean he can no longer make a will? No. he can ask somebody
to write his name for him. Take note how the law was worded. Hindi
sinabi na he shall ask another to sign for him.
Testator may delegate the writing of name for him.
But for that somebody to write the name of testator for him, two
requirements have to be complied with:
a. Upon express direction of testator: Tatay ni Ron nasa ospital,
may sakit, nakacoma. So gumawa si Ron ng will, giving to
himself all the wealth of his father. Punta sha sa hospital,
“Dad, remember napag-usapan natin before yun diba. 75%
skain. So before you leave us, gumawa na ako ng will in
accordance with your desire napag-usapan natin before.
Page 8 of 63
Kung di ka naman makapirma, ipipirma na kita. Ipirpirma na
kita. Hind nagshake ng hand!!! Ay hindi nagshake. Ipipirma
na kita!” Di pwede kasi nga dapat nga express. Dapat sabihin
niya “Oy isulat mo pangalan ko jna. Express direction.
Who may testator request to sign the name for him? May a minor of
tender age like 15 years, be requested by the testator as his delegate
in writing his name on the will? Correct answer is it depends. Take note
law does not require delegate to be “of age” but we can only gather
the qualification of delegate from the requirements for validity of the
act e.g. express direction. He must be of sufficient maturity to be able
to comprehend the directions of the testator. Must be able to read and
write. In DLC’s opinion, those are the only qualficiation for the
delegate:
Read and write
Such age to comprehend and execute the express
direction of the testator
So pwede na yung 15 year old, hs student nay un. Nakakaintindi na
yun. Pwede pa nga isulat pangalan niya sa will as an heir.
How about one of the witnesses to the will, may he be the delegate?
There are two views:
1. NOT – reason later when we reach witnesses
2.
What name must the delegate write on the will?
- Suppose he wrote his name, is the will valid? No. he is not required to
write the name on the will. What he is required to write is name of the
testator. He is not even required to copy the signature of the testator.
He is required to write the name of the testator.
- Suppose he wrote the name of testator and wrote his name too, will
the writing of his name invalidate the will? NO. name of delegate
written on the will will be treated as mere surplusage.
But if delegate wrote his name, but not the testator, the will is invalid.
It does not comply with formality that it must be signed by the testator
at the end thereof.
How must the delegate write the name of the testator?
“Iho sulat mo yung name ko jan. nanginginig na yung kamay ko eh!”
Kinuha ni iho yung rubber facsimile stamp with his sign, how must the
delegate write the name of the testator?
In re Balonan v Javellana: Happened in Vigan, Ilocos Sur, there was this
spinster who executed her last will and testament written in Spanish,
the language known and spoken by the testatrix. Eh nangingig na
kamay testatrix so she asked the nephew to write name on the will.
The nephew typed the name in the. Por La Testadora Dona Maria
Singson De Leon. Pinirmahan nung nephew. Delegate typed the name
of the testatrix pero hindi niya isinulat with his handwriting. Is the will
valid? SC said no because the delegate didn’t write the name.
What is the implication of the court’s ruling in Balonan v Javellana: the
delegate must write name of testator in his own handwriting. Di
pwedeng mechanical ang pagsusulat ng pangalan testator. That’s the
obiter implication.
Law requires the delegate to write the name of the testator in the
presence of testator: what if ganito: Sabi ni sick Eva kay househelp
“Inday, you go to study room. Sa first drawer to the right, open it and
get my will. You see there, may papel nakasulat last will and
testament. Ieexecute ko yan.” Naku Ate (not Senora, sa old movies
lang yun) , pano kaw pirma nakabandage ka!” Pagbalik niya: Oh ate
napirmahan ko na. nakasulat na pangalan mo jan. Is the will valid?
Strict reading of code, not valid. Kasi delegate did not write the name
in the presence of the testator. This is mandatory. Signing not in the
presence of testator and confirming the writing before testator later
on is not allowed. Will that be substantial compliance? Later paguusapan natin yan. Substantial compliance kasi amounts to
compliance. But when is there substantial compliance?
IDISCUSS NA NGA NATIN. TOTAL NASIMULAN KO NA.
Compliance with solemnity:
Compliance
Non-compliance  VOID
Full compliance  walang problema, natural VALID when
compliance to the law is to the letter. Literal compliance.
Substantial compliance  VALID: manner of execution followed
by the testator was not in literal compliance with the provisions
of the law. But while the manner followed was not literal, it
nonehtless served the purpose behind the required formality. It
served the purpose of formality.
Judge-made doctrine. Never nga namention dati sa OCC yan. But now
meron na in Art 809. It’s a new provision.
So sa kaso ni Inday, pinirmahan niya sa kabilang room pero dinala
kagad kay Eva: is that substantial compliance? We will reserve the
discussion when we reach A809.
Take note that delegate not required to read the will. How to write,
block print, cursive. Pwede ba Chinese characters kung Chinese yung
delegate? Di ata.
b. In his presence of testator
Take note that the testator must sign the will in the presence of the
three witnesses, therefore, so must the delegate.
Where must delegate write testator? Where the testator is supposed
to sign. At the end of the will.
2.
Attested and subscribed by 3 or more credible witnesses
Testator subscribed lang. witnesses attested AND subscribed.
Ano yung “attested”? In the documents issued by president, it means
certified. Pero in wills and succession, it means “observed and
witnessed”
What must these witnesses witness? The testator in his act of signing.
The testator’s act of executing his will.
Ang tanong ninyo jan: bakit tatlong testigo na dapat makakita? Kasi
this will will most likely be submitted to court for probate when the
testator is dead so somebody has to vouch the authenticity of the will.
Somebody must be there. Who the judge will question and opposing
counsel will cross-examine to find out if it was executed freely and
voluntarily.
Sir bakit tatlo? At least may dalawang spare, pag namatay yung isa.
Mas mahirap nating palitan ang dokumento pag tatlo ang testigo kasi
the law requires them to subscribe. They will have to sign each and
every page of the will except the last on the left hand margin.
Later on namatay na yung testator, tas mamaya nakita ng heirs.
Binigyan ng malaking mana nung DI sa third page. Apat na pirma ang
Page 9 of 63
pepekein nila kaya mahihirapan silang gawin yun. Kaya may ganyang
requirements.
Pag sobrang dami, baka wala na sila pirmahan sa margin. Natabunan
na ng pirma yung will mismo.
Testator invited 3 close friends in the morning of a Saturday to come to
his house to become instrumental witnesses of his will. Dun na kayo
magmerienda. 9:00 AM you will witness in my execution of will. Kaya
lang la na yung testator nung dumating sila. Sabungero kasi, 10AM
sabong na. So ginawa ni testator, wala pa witness niya, pumirma na
sha. Pagbalik niya mejo good mood, nanalo manok niya. Late kayo! Oo
nga pare pasensha. O ayan pirmahan niyo yan ha. Is the will valid? If
you look at requirements of the law, no literal compliance. Di naman
pinirmahan in the presence, he signed it alone and acknowledged that
the signature on the pages of the will were his. Is there substantial
compliance?
Another thing required from witnesses to do:
1. Attest
2. Subscribe – affix a signature
Purpose for subscription: identify the will when presented
for probate. Witnesses can identify the will through signature
appearing on the will.
To comply with requirement of witness attestation, must the witnesses
see that testator sign? In one case, Jaboneta v Justilo yung testator
nagschedule ng day to executive will so invited 3 close friends as
witnesses and the notary public to be there as well. Merong
photographer para nga naman may additional evidence. Kinodakan
yung event. Basta may kumilos, may shot. Some heirs given less than
expected, they want to oppose probate of will. Walang maisip na
ground. Nakita yung pictures, nakatayo sa likod yung witnesses. Notary
public nasa gilid. In so many photographs, habang pumipirma yung
testator, the witness was chatting with somebody. Walang kahit isang
photo na nakatingin sha. Disgruntled heirs used this. Therefore there
were only two witnesses kasi daldal ng daldal yung isa he didn’t
actually see the testator sign! SC: memorize taon taon lumalabas sa
bar ito: “The law does not require the witnesses to actually see the
testator sign his will. It is enough if the witness could have seen the
testator sign by merely casting their eyes in the proper direction.”
Reiterated in the cases assigned.
12 July 2010
Jaboneta v Justilo was reiterated in many cases and in fact, I assigned
to you Nera v Rimando.
Not required to actually see the testator sign. It is enough that the
testator or witnesses could have seen the other sign had they wanted
to do so by casting their eyes to the proper distinction.
Jaboneta: standing at the back of testator
Nera: one of the witnesses was in the other adjacent room. Court said:
he could have seen it despite the curtain had he wanted to. Extreme na
yun. Still, they have applied the Jaboneta doctrine.
What is the reason why the law requires witnesses for a valid will?

To render available proof of its authenticity and due
execution. Witnesses will be proof as to the authenticity of
the will. Why? Eh makikita agad nila, “Ay nako, di yan yung
will. Di ko prima yan eh.” They can easily identify the will.
The signature appearing there is not mine. O kaya sabi niay
“DI yan yung will. I distinctly remember that the testator
used blue ink instead of black.”

They will also be proof as to the mental condition of the
testator at the time of execution. (as to testamentary
capacity) “Nako parang wala sha sa sarili niya.”

Purpose why law requires intervention of three witnesses. 
Proof of authenticity and due execution of will.
Bakit three witnesses? It’s an arbitrary number chosen by framers of
the code. To insulate against the supervening incapacity of the witness.
Where will the witnesses sign? In the case of testator, law is very clear
i.e. at the end of the will (thereof) How about the witnesses, where
must they sign. Unfortunately, the law is silent where the witnesses
must sign. This was decided by the supreme court in the case of
Taboada v Rosal. Witnesses signed all pages on the left margin, not the
last page at the end of the will. On the page which contains last
disposition, only testator signed but not the witnesses. Was the will
valid? YES, but there was a dissenting opinion.
In practice, sa kontrata, pag me piprimahan kayong deed of sale two
pages.
Deed of Sale
Text text text
(Sgd) Seller
Witnesses witnesses
Tas they also sign sa left margin
Dapat ba ganun din sa wills?
Taboada v Rosal:
1. Law does not indicate where they should sign
2. Signatures in the margin served the purpose of the signature
(identify the will later on and prevent substitution of the
page). Parang substantial compliance yan. All purposes were
served by the marginal signature affixed by the witnesses.
May a witness sign with a thumbmakr? You know that a testator may
sign with thumbmark. Does the same apply for witnesses? What
signature is sufficient for him?
According to Senator Tolentino, if you read him, it depends if the
witness signed with a thumbmark because he was illiterate, it is void. a
witness should know how to read and write. Otherwise, he is
disqualified to become a witness. If there are less than three
witnesses, the notarial will is invalid.
If the witness knew how to read and right BUT usually sign with a
thumbmark, it will be sufficient signature for the purpose of making of
will.
The testator who is not able to sign may request somebody to sign his
will, he is called a delegate. How about the witness, is it required that
he is able to sign. May he request a delegate to write his name on the
will?
Sen Tolentino: unable to write was allowed to sign through another in
New Hampshire because it was provided in their law on wills and
testament but cannot be applied here because law requires witness to
subscribe. There is no law which authorizes witness to sign through a
delegate. Testator is allowed to sign through delegate because
authorized by law. IMPLICATION: The general rule is that nobody is
authorized to sign will through a delegate. That’s why exception has to
be provided in law for the testator.
Page 10 of 63
How many witnesses are required? 3 or more credible witnesses. What
is the effect if there is less than three? Will is void.
What if more than 3 witnesses? No effect. Because law effects
expressly allows more than 3 witnesses.
Kahit ilan niyo pa gusto, pero take note habang dumadami ang
witnesses, lumalaki ang risk na maging invalid.
What is the order of signing?
Imagine nakaupo sila sa long table. Pasa-pasa pasa sila? OR nakabigay
na sa kanila lahat ng kopya tas swap swap sila.
Must the testator sign first before the witnesses? There are two views.
Strict and liberal
1. Strict – testator must sign at least one copy. Until he has
signed, there’s no will and there’s nothing to assess on the
part of the witnesses.
E.g. Dumating lawyer with t copies of the will. Binigay sa witness
para pumirma sila. Hindi valid ito according strict view.
2. Liberal – as long as accomplished in one transaction and
same occasion, the order of signing is immaterial. In the Phil,
no case of such issue has happened before. Siguro kasi
maingat lahat ng abogado. Prima muna testator before
witnesses.
Sign in the presence:
Reason for signing: Para nagkakaamuyan sila kung pano pumirma ang
bawat isa. Para kung sakaling may magsinungaling mamaya, they can
easily counter the perjury. Hoy violet yung ink mo jan dati ah! Bakit iba
ang pirma mo dito?
Itong si Ron decided to make a will. He asked lawyer to make a draft in
accordance with his wishes. He invited three of his bestfirends to be
his witnesses. Nung present na silang apat and the notary public was
there. “You watch me, I will sign tese all!” tas biglang inatake matapos
primahan. Nagkikisay dun sa floor si Ron. What will the witnesses do?
Shempre dinala muna si Ron sa hospital. He has been unconscious for
one month. Sabi witnesses, pipirmahan na natin to? Oh eh sabi ng
batas, in the rpresence of Ron ayan si ron sa hospital oh. Is the will is
valid? No. while they signed it in the physical presence of the testator,
it is not what is required. He must be conscious that the witnesses are
signing his will.
May a blind man make a will? Pano malalaman ng bulag na yung
witnesses eh pumiprima sa kanyang will? Dahil nakarinig ng lecture
yung tatlong witnesses ni Ron sa hospital. Sabi ni DaniCon di natin
pwedeng pirmahan kasi hhindi siya gising. After sleeping for more than
2 months, he finally woke up and recovered and discharged in his
hospital. Now he is at home. Nagpuntahan na yung tatlong testigo. O
magaling ka na. Pipirmahan na naming will mo ah! Is it valid? Not valid
because execution must be done in a signle continuous transaction. Di
pwede magkaron ng gap. Kung pwede magkaron ng gap ng 6 months,
bakit hindi 1 year. Magkakaproblem tayo diyan baka nagbago na ang
testamentary capacity yung transaction. Di pwede magkaron ng break.
The witnesses cannot sign on a different occasion.
Suppose the testator couldn’t sign his will? May piling na yung kamay
ko, may Parkinson’s ako, kaliga mo na si Michael J. Fox. So you
requested somebody to write your name. he should write in your
presence and under your direction. Must he sign in the presence of
your witnesses? Of course.
In our problem, suppose the delegate wrote the name of Ron in each
and every page of the will, however he had to leave after completion
of the signing. Umalis yung delegate? Habang pumipirima yung testigo,
wala yung delegate. When testator sign through delegate, must the
witnesses sign in the presence of delegate? No. Kaya nga agent lang
sha diba.
Suppose one of the witnesses is blind, maski anong pihit mo sa ulo
niya, hindi niya makikita talaga. No matter where you cast his face,
he’ll never see the testator sign. Is the will valid? No. blind man is
disqualified from witnessing a will.
“Each and every page must be signed by testator and witnesses”
Take note: Law requires two sets of signature:
1. Testator is required at the end of the will
Where: at the end of the will
2. Each and every page except the last
Why last? Kasi nga nandun na yung first set
Where: left margin
Who: testator and witnesses
What signature is sufficient for the second set? Issue: In the case of an
ordinary contract, e.g. sale, yung full signature natin, yung long
signature ang inaaffix sa end of the contract. Usually affix it on top of
our printed name. We are also required to sign each and every page.
Pano pinipirpirmahan ang each and every page? Initials na lang eh.
Pwede bas a will na iba ang pirma sa end at sa bawat page on the left
margin? So far this issue has not reached the SC. Danicon: there should
only be one signature of a person on all the pages of the will. Pareparaeho dapat prima niyan. Kaya pag ako ang naging justice ng SC at
makarating sakin ang will na iba ang margin at kayo ang abogado,
isasampal ko sa inyo yan. Hindi kayo natuto. Dapat pareho ang prima
niyo. Wag lang initial. Although wala pang kaso. Ditto makikita kung
gano kagaling yung abogado eh. Dapat pareho yung prima.
On the left margin:
Eh sir sa right margin pumirma? Eh kaliwete eh. O kaya sa bottom/top
hindi sa margin? Sir naubos kasi yung space. Will that invalidate? NO
because that’s substantial compliance. The purpose is served.
Suppose the will is written on only one page. Isa lang ang provision ni
Ron, “I institute my GF Eva Gutierrez as my sole and universal heir.”
Kailangan pa ban g marginal signature? What is important for a valid
will is each and every page must contain FOUR signatures (testator +
witnesses).
Suppose the will was written on two pages pero dahil Boholano (mas
kuripot pa sa Ilocano) yung testator. Pano magpaypay ang Boholano?
*Nods head in front of paper* WTF Isang sheet lang ng paper, front
and back. Sa front ba kailangan pa ng marginal signature? Yes. Kasi
page nakalagay sa batas, hindi sheet. For all we know, baka mamaya
hindi naman back to back yung will nung ginawa. Merong separate first
page on separate sheet of paper. Yun ang sinupress at nagtype sila sa
back ng second page to make it appear na back to back. Kakainin lang
yung 1st page tas gagawa ng bago dun sa likod ng page 2.
What is the effect if not all of the pages were signed on the margin?
The will is void. Apat dapat yan palagi. Basta nawala ang isa. Is there an
exception? NO! Icasiano v Icasiano is not an exception. Original copy
walang pirma yung isang witness. Probate was opposed by some
relatives on the ground that will was invalid. One of the witnesses did
not sign one page. They presented the witness in court. He must have
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lifted two pages at the same time inadvertently so he was not able to
sign the pages. What was the ruling of the court? Valid not because it
was an exception, not because the witness testified. What was the
reason the court declared it valid?
1. Di niyo naman kailagngang ipresent yung original because it
was a duplicate original. It was sufficient for them to have
submitted a copy which was a duplicate original. All of them
were originals.
2. No allegation of fraud or bad faith.  Danicon: Okay to.
3. Sabi ni JBL Reyes, all the marks of the dry seal of the lawyer,
where all concentric. Pag pinagpatong-patong mo,
magkakatugma yung dry seal. Delikado yung pronouncement
nay un. Dapat tinataktak yung papel para pantay-pantay.
Yung iba salang na lang bigla. Siguro di sha nagnotaryo dati.
Icasiano is not a case that creates an exception to the rule.
The testator requrested a delegate to write his name on the will? Must
the delegate write the name of the testator on each and every page of
the margin? Natural. Di nga makasulat so sha lahat ng gagawa nun.
Pipirma sha at the end of the page and on each and every margin.
Hindi pirma niya but the name of the testator. How he wrote in the last
page should be the manner how he write on each and every page.
“All the pages should be numbered”
How are the pages should be numbered?
1. In letters
Letters daw oh. So “A” “B” utak Manny Pacquiao ata. Parang cheke
yan. May numerals at may letter. Para walang daya. Yung 1 pwedeng
maging 4 at 7. Yung 2 pwede maging 3 or5. Yung 6 pwedeng 8 at 4.
WTF Danicon hahah.
The correct numbering in letters is: One Two Three. Dapat yan “in
words” kaso trinanslate yan from Spanish eh. Call, sandali lang baka si
Pinoynoy ito. Hindi po si Pinoynoy yun. “In letras” may also be
interpreted as “in words”.
2. Correlatively
Show on the page of the numbering. “One/First of five pages”
“Two/Second of five pages” “Three/Third of five pages”
Why? Para alam natin kung may nawawala. Alam natin if some page
has been suppressed.
Suppose will was written on five pages, one of the pages was missing.
Can we allow probate of the four remaining pages? Itaga niyo sa mga
batok niyo. It’s all or nothing. Parang si Mayor Lim yan. Enforce the law
or something. Why? We don’t know what’s contained on the missing
page. For all we know, the dispositions in the first four pages are
dependent on a disposition of the fifth page. Baka nga kaya nawala
kasi nandun yung magic conditions. “Ang lahat ng naririto ay magiging
mabisa lamang KAPAG…”
But SC encountered pagination literally in alphabet. SC said “Aaaay
substantial compliance na yan. Alam naman nating magkakasunod
sila.” DAniCon: Pero ilan lahat ng pages na yun? Hanggang san ba
tumigil yung testator. Baka wala ngang pagination yung will. Tinanggal
some pages tas saka nilagyan ng numbering. But you know, wala pa
naman ako sa SC, hindi pa mababago yan. That’s an actual case but
not in your syllabus. Inallow nila yung letters of alphabet.
PURPOSE: Prevent insertion or suppression of the page. E.g.They can’t
have a Page 4-A. Parang Memorandum Circular 1-A. Hindi UP grad
gumawa nun ha!
Suppose only one page. Kailangan pa ba ng page? There’s no harm if
you write pagination on one page. Pero kung hindi nalagyan, pwede ba
yun? Yes. May kaso na yan. One page on one sheet. Reason: There can
be no substitution or suppression anymore. Pwede na walang
numbering.
“Attestation clause”
What is it? Written memorandum of facts that attended the execution
of the will executed by the witnesses to serve as evidence of the will’s
due execution.
PURPOSE: Preserve in permanent form the record of facts attending
the execution of will such that in case of failure of memory or
causualty due to supervening events. The execution of the will may still
be proven.
What is included there? All the facts required by law to appear therein.
Nakalagay sa Art. 805.
May pipirma ba jan? Witnesses. Why must they sign? Because it’s their
certification that their will was executed in accordance with those facts
written in the attestation clause. Inadvance niyo ata yang relos na yan!
19 July 2010 – Happy birthday Renzpot!!! :D
Whose act is the attestation clause? The witnesses and since it’s their
act, they must sign it.
805 does not require the witnesses to sign. But in the case Cagro v
Cagro, it is deemed not executed b the witnesses when not signed.
That made the will invalid. For them to be considered to have signed
the attestation clause, marginal signature where the attestation clause
were written is not enough. They must sign at the bottokm. That’s the
only place where signature msut be affixed to be considered signed by
the witnesses. The marginal signatures did not execute the attestation
clause.
Distinguish the case of Cagro in the doctrine of Taboada v Rosal. Both
involved marginal signature of the witnesses. In the latter, the
witnesses did not sign the end of the will, just the marginal. The
marginal signatures were sufficient compliance with 805. But in CAgro,
the marginal signatures were not enough. Those marginal signatures
did not constitute substantial compliance.
How may the attestation be written? Art 805 tells us what is written.
But the question is “HOW” may it be written as part of the will?
Integrated in the body of the will OR must the attestation be a
separate narration/instrument from the body of the will? The law does
not tell us how the AC should be written. For as long as the AC is a
certification by the witnesses and the contents enumerated in the law
arre all contained in the AC, that should suffice. However, if it is
written as an integral part of the body of the will. Taboada v Rosal is
no longer applicable. Witnesses msut sign at the end of the will to be
considered as valid AC. Pero yung mga abogado, hindi na natin
sinasama as part of the body of the will. We make it as a separate
instrument. Certification separate from the will. Since it’s a separate
instrument, it has to be executed bythe witnesses by signing at the end
or at the bottom of the attestation clause.
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May the witnesses execute the AC on a separate occasion, kasi hindi
kasama sa will? Pwede ba nilang iseparate on a separate occasion. E.g.
testator and witnesses executed will today but Notary Public forgot to
prepare the AC for the witnesses to sign. May the AC be executed by
the witnesses the next day in the office of the notary public? The law
does not tell us that the AC should be executed on the same occasion.
Can it be executed on a separate occasion. In my opinion, NO, it cannot
be executed on a separate occasion. If it can be executed on a separate
occasion, how long must the gap be. If it’s one day, then why not one
year? If it can be one year, why not three or five years? Sandali muna,
when do we stop?
When the AC is executed on a separate occasion, must the testator be
present when the witnesses execute the AC? Remember what the law
provides, testator must sign each and every page of the will in the
presence of witnesses, witnesses must sign each and every page of the
will msut be signed in the presence of the testator and of each other.
Whose act is the AC? It’s that of the witnesses. The page which
contains nothing but AC must that be included in the number of pages
in the will? Di ba yun ang nakalagay sa AC? Yung number of pages in
which the will was written. The answer is NO, Abangan v Abangan, SC
says we don’t include the number of pages in the will where the AC
was written. It’s not part of the will. It’s not an act of the testator.
Rather it’s an act of the witnesses. So w e don’t sama that number in
the number of pages. Kung hindi naman pala kasama, therefore, the
testator need not sign the page which contains nothing but AC, all
pages must sign in the marign. Pipirma pa ba yung testator sa AC sa
margin? Hindinaman pala part ng will, pwede ba gawin ng witnesses
separate form the will? In my opinion: NO, you have to look at the
purpose of AC. It’s there to guard against the treachery of human
memory. Therefore, if there’s gap, the purpose wil be lost. It’s purpose
is to preserve the facts surrounding the execution. Wala pang kaso
yan. Opinion ko lang iyon.
Must it be written in a language known to the witnesses. Will is act of
testator. Law requires will to be written. AC is act of witnesses. NO. in
fact, last par of 805 provides that if the AC was written in language not
known, the same has to be interpreted to them. Thereby allowing AC
written in a language not known to witneses.
Must AC be written in language known to the testator? No. it’s not his
act, he has nothing to do with it. No pint making it known to him.
AC written in same language as will? Yes, no such requirement in law
that they be same language.
What is the effect if there is no AC? If the will is notarial and without
AC, the will is invalid. This requirement is mandatory.
What must the AC contain? Marami yan.
1. Number of pages
2. Testator signed the will and every page thereof in the
presence of witnesses
3. Witnesses witness and signed the will and every page thereof
in the presence of testator and of one another
In case testator signed thorugh delegate, what should AC state?
Caused another to sign his name under the latter’s express dirrectin, in
the presence of witnesses, hindi sinabi yung testator.
Must the AC state the name of delegate? Walang nakalagay.
Effect if AC failed to state one of those required by law to appear in the
clause? General rule: will is void. But exception in 809. If you will look
at 809, it’s a new provision. It was not present in the old code. A809
does not tell us that the substantial compliance rule applies only to
defenctive AC. Without AC the substantial compliance doctrine has
been applied by the SC, we have discussed that in our previous
meetings.
Without A809, the substantial compliance doctrine, a judge-made
doctrine is valid exercise of the equity jurisdiction of the courts. But
A809 simply provides a special substantial compliance rule when the
defect involves the AC. So pagka-AC na yung defective, we don’t apply
the general doctrine of substantial compliance. Meron nang special
substantial compliance rule in A809. Ergo, if the defect is not AC, the
general rule on substantial compliance will apply. Later na natin
ididscuss ang 809, maraming di nakakaintindi niyan.
Must AC be dated? There’s no requirement.
Must AC state place of execution? Hindi rin nakalagay sa batas yun.
AC being made part of the will? Cuevas v Achacoso
AC _________? Villaflor v Tobias.
Cagro v Cagro: Strong dissentingopinion. Read that! Essentially sabi
niya: Why should we erequired the witnesses to sign at the bottom for
validity when the law does not require/indicate where the witnesses
must sign. In fact, the law does not reuire AC has to be signed.
“Acknowledged”
What is meant by “acknowledgment”? To acknowledge means to
admit authorship of an act. So if somebody acknowledges a deed of
sale before a NP, what does he acknowledge? He acknowledges that
he is a party to the Deed of Sale either as a buyer or seller. In the case
of a will, what is to be acknowledged?
Who are required to acknowledge? All the four should acknowledge
before a NP
What does testator admit? Authroship of the will, e.g. this will was
executed by me. This is my last will and testament. Ano pa? That he
executed it freely and voluntarily. Authorship and voluntariness of
execution.
How about the witnesses, what will they acknowledge before NP?
Authorship of the AC. Yun ang kanilang act so that’s what they would
acknowledge and the voluntariness of the act. Impliedly, the witnesses
will admit before NP, their having witnessed the execution of will by
the testator.
What is the reason why this acknowledgment is required? Purpose
according to code commission:
[1] ensure authrenticity of the will and
[2] minimize fraud.
It has history. Under Spanish CC which was in force in the country
before Americans came, notarial intervention for validity of will was
necessary but the Americans decided to do away with the notarila
intervention. The Civil Procedure which amended parts of the Spanish
CC, eliminated notarial acknowledgement. Many frauds were
committed especially at the testator’s bedside by affixing his
thumbmark. Kaya nirestore ito in the NCC. Akala nung gumawa ng
batas, pag may abogado nag-intervene, siguradon nang authentic yung
dokumento, sha pa nga ang namemeke. Yung mga abogadong
nagbubukas ng ataul at nonotaryuhin pa niya. Itantedate pa yung will
to make it appear it was made before testator died. Kaya lang may CSI
na ngayon eh. Pag yung thumbmark inaffix sa document after the
corpse has undergone rigor mortis stage, iba na itsura ng thumbmark.
Pag nagrigor mortis, naninigas rin yung tissues nay an. Pag ka
lumambot yung corpse, hindi na shag anon kaelastic kaya may
Page 13 of 63
nangyayari sa thumbmark, siguro crumbled. At least ngayon alam niyo
kung pano dadayain. Kailangan mainit init pa yung bangkay, bago magrigor mortis. Ithumbmark tas inotaryo. Palabasin niyon inexecute
before he died. The code commission decided to return the
intervention by a notary public.
BTW under the old notarial law, hindi lahat ng NP ay abogado. There
are instances where even non-lawyers were allowed to apply for
commission. Ang nacarry over lang eh yung ability to administer oaths.
LGC authorizes mayors and governors. Petition for authority to
administer oaths if the place where he resides has no lawyer/mayor.
When must the testator and witnesses acknowledge? Definitely not
before the execution of the will, kasi nothing to acknowledge before
NP. They may acknowledge only after the will was executed.
May they acknowledge on a separate occasion? Halimbawa executed
today, kaya lang the NP who was not present in the execution.
Pinadala laang yung last will and testament together with the AC. Sabi
nung lawyer, ay pasensha na po pero meron akong meeting. I cannot
be present in the signing of the will. Since the NP was present during
the signing, the testator and witnesses could not possibly acknowledge
on the same occasion. May the acknowledgment be done on a
separate occasion? Pwede ang 1 day, 1 year, 1 month. Where do we
stop? According to Justice Eduardo Caguioa, only one who wrote
about this requirement. No need to acknowledge on the same
occasion as execution on the same day of the will. No other purpose
than making usre that the will was executed by the testator himself
and that the testator have testamentary capacity. Meanin g he was still
alive and executed voluntarily byt the testator. Walang magbabago
even though acknowledgemnt done on a separate occasion. I dare not
debate with Justice cAguioa, possible na walang risk or prejudice. Yung
nga lang. kung pwede ng 1 day, why not 1 month, 1 year, 5 years, 10
years. Not only that.
May the witnesses and testator acknowledge on different occasions?
Pwede bang bukas si testator, without the witnesses, and then the
witnesses will acknowledge 1 month from today. May those foru
parties on foru different occasions? Kay Justice Caguioa, pwede yun. Eh
kung pwede yun. Pwede ba after the death of the testator?! What if
the witnesses acknowledge it after the death of the testator. If we
follow the logical __ of the arguments espoused by justice Caguioa, he
will opine that it can be acknowledge after the death. Nakapirma na
naman sila sa will at AC.
IF the four may acknowledge on different occasions, may acknowledge
before different notaries public? Pwede bay un? According to Justice
Caguioa, no requirement that they acknowledge before the same. Ang
mangyayari lang dun. Matatadtad ng dry seal yung will. Even if they
don’t acknowledge before the saem notary public pero different
occasions, tadtad pa rin yun.
What is the evidence that it was acknowledge before notary public?
The “acknowledgement certificate”. Prepared by the notary before
whom it was acknowledge. NP certifies who appeared before him
citing proper identification (din a sufficient resident certificate ngayon.
Id issued by the government) tstator certification that the
acknowledging party acknowledged before him and executed by him
freely and voluntarily. NP must ask the paryt about circumstances that
will make him conclude executed the will freely and voluntarily. The
moment he is convicned that it was executed freely and voluntarily by
the party, that’s the time NP will prepare the Ackowledgment
Certificate.
The AckCertif is usually in fact almost always as a separate instrument.
Kadalasan, nakaseparate na page yan. Pero kung si abogado ay
nagtitipid sa attestation at ackcertif. Hindi natin ginagawa yun kasi pag
nagkamali ka mahirap naman putulin. Madaling palitan. That sheet of
paper where ackcertif was written, is that part of will? NO.
Must testator and witnesses sign the margin of the page? No, not part
of will.
Must testator and witnesses sign at the end of ackcert? No, bec it’s the
act of the NP.
Must ackcert state the name of the witneses?
(ca decision) need not mention the names of the testator and
witneses. Parang di mangayayri yan ngayon kasi they need to identify
the acknowledging parties. Pati yung details ng ID, kailangang maisualt
sa AckCert, baka di na applicable under the present notarial law.
The ackcert, must it be signed by the testator on the same occasion
that the testator and witnesses acknowledged before him? Javellana v
Ledesma: mayaman at malapit na mamatay. Signed at the hospital
room of the testator. Nako nalimutan ko po yung ackcert, notarial seal
and document and brought at his office. When he arrived at his office,
5thirsty club na. hindi na nanotaryo. Kinabukasan, he will appear in
court, attend hearings, he has pleadings to prepare, solo practitioner
sa probinsha, just one secretary and messenger sa probinsha.
Nalimutan niyang notaryuhin yugn will hanggang isang umaga, sabi ni
secretary. Boss di pa natin nanotaryo will ni Don Pepe, namatay na
kagabi. Notaryado na, so dinala na sa court. Nag-away si Lawyer at
secretary, nung nag-away sila, ginawa ni secretary, pumunta sa kabila
sa mga oppositors ng will. No it did not invalidate the will. The ack cert
is not the act of testator nor the witnesesse. As far as law is concerned,
they have complied with all formalities required by law. Cannot be
made to depend on act of np over whom testator and witnesses have
no control. Besides, the execution of the notarial certificate, whether
done before or after the testator does not increase the risk of will
being a forgery or fraudulently obtained. DOCTRINE: AckCert may be
prepared and executed by NP not on the same occasion that the
testator and witnesses acknowledged before him. In fact, it can be
done by the NP even after the death of the testator.
If the testator requested a delegate to write his name, must the
delegate acknowledge before a notary public? NO, it’s not required.
The delegate need not appear becaseu the act of the delegtate is
supposed to be the act of the principal testator. Therefore, it’s the
testator who should ackonolwedge, not the delegate.
What is the effect if no acknowledgment? If notarial will, void. The tax
code requires a documentary stamp to be affixed and can___on every
ackcert that a notary public will prepare and execute. Hindi nalagyan
ng documentary stamp ang will, yugn ackcert. The first you will
encounter is the application for admission to the bar. What is the
effect. Under the law, the document that was notarized is not
admissible in evidence. kapag deed of sale tas yung ackdert ay walang
stamp, it’s not admissible in court. Si atty, hindi nilagayn ng
documentary stamp yung ackcert of the will, nung namatay yung
testator, the will was presented in court, ang sabi ni oppositors, the
will is invalid because the ackcert is inadmissible, therefore, since
inadmissible, the effect is no ackcert and the will is invalid. Gabucan v
Manta: No the absence of documentary stamp does not make the will
Page 14 of 63
invalid. The absence of the stamp makes the document inadmissible
but may be affixed anytime. After affixing, it becomes immediately
admissible. Wala ba? O eh di lagyan!
Ordinarily when a NP notarizes, he retains 2 copies: for his files and the
national archives. Submit the notarial register together with the
SOlGen. Sol Gen to National Archives. Deed of Sale, four copies yan. In
the case of a will, must the NP retain copy? No not required to retain.
But may he? Yes if allowed by the copy. Because the testator may have
interest in having it a secret before his death. Marami makakakita
niyan, secretary, messenger, record, national archive. To address that
concern of testator, the law does not require NP to retain a copy. If
not, he has to give copy of notarized will to the testator.
CHI: Pwede bang kamag-anak yung NP?
SPECIAL REQUIREMENTS ano nga yung halo-halo special?
Special testators with special conditions. Not prohibited to make a will,
but to ensure that the will was not forced upon the testator the law
imposes special formal requirements. Dalawang classes:
1. Deaf/deaf-mute
2. Blind
DEAF/DEAF-MUTE
Usually, when deafness is inborn, most likely mute din yan. Without
sound to emulate so hindi niya alam kung pano gagayahin yung sound
na yun. But if deafness was acquired, most likely bingi lang pero
nakakapagsalita. Bakit merong special requirements? Eh kasi nung
araw, ang tining nila sa deaf-mute/deaf eh dumb. Handicap so great
they are considered feeble-minded, idiots or dumb. Nung araw sa
society, itinatago ang deaf-mute baka nakakadena pa nga. Kulang pa
ng social skills. Eh sir pano yumaman, eh siguro nagmana o tumama sa
lotto! Pero yumaman eh, magagawa natin? There must be an express
provision prohibiting. Meron ngang special requirements to allow
them. Under 807: personally read the will if able to do so, otherwise,
he shall designate 2 persons to read and communicate in some
practicable manner the contents thereof.
How will these two persons read and communicate? Must they read at
the saem time or must they read and communicate one after another?
Take note, if the intention is one after another, baka dapat art808 yung
wording na maliwanag. Ergo, mukhang an gang intention ng batas eh
for these two to help each other. Bakit sila sabay? Para makita ng
testator na nag-aaway sila kung hindi sila magkasundo kung pano
iccommunicate to him the contents of the will.
Invented by a French man ang pangalan ay… Braille. Natural! CAMILLE!
Camiy. Pag acquired, nakakasulat yan yung nga lang hindi pantaypantay. Regardless of born blind or became blind later on. Comply with
additional specific requirement. Read twice but the witness and NP
before whom acknowledge. Purpose: to ensure that what was written
is what was desired by the testator.
Effect of failure to comply with additional requirements: Garcia v
Vasquez: will is invalid.
Should the fact of compliance with these additional requirements
appear in the AC? No need. Sufficient to establish in probate
proceedings. Mascarinas v Angeles.
Should the testator be deaf-mute and blind, Kawawa naman. No
expresss provision, disqualification. If the testator is deaf, mute and
blind. What specific additional requrieemnts must the testator comply
with? Both bang 807 and 808? Kasi kung comply with 807 pano
idedemonstrate? Kahit anong monstra monster hindi makikita. Kahit
anong basa sa kanya, walang maririnig! How do we ensure that this
poor fellow who is wealthy? Pano? Dapat siguro disqualified na lang.
How about ILLITERATE no read and no write? No express prohibition
and disqualification. Must the illiterate comply with special specific
reqruiement? YES, 808. In the eyes of the alw, the illiterate person is
blind how does the law define blind? Somebody who cannot read his
will is a blind man. No matter how hard he looks, he cannot read.
Alvarado v Gaviola: Told his nephew who was a lawyer. After a series
of conference and draft correction, they finally agreed on the final
copy fo the will, let’s schedule a day for the execute. Atty. Nephew.
Tumawag ng tatlong testigo at isa pang lawyer who will act as the
notary public. Gave one copy of the will to the witnesses and the NP.
Read aloud slowly the contents of the will, addressed to the testator.
Okay nay an. That’s my will. The testator was blind. I will sign na! Art.
808 requires two readings, but only one witness. Lawyer nephew was a
not a witness, nor the NP. There was no compliance with all the
additional reliance. Yes. There was substantial compliance. Why? There
was no literal but the manner followed in executing the will served the
prupose behind 808. How come? Ang purpose lang naman two
readings ay para masiguro ay kung ano nakasulat ay yun ang nakasulat.
Kung iba ang sinabi nung nephew kesa sa nakasulat eh di nagreklamo
yung testigo!. Since none of the witness, the NP even did not raise an
objection. What was read was what was written
CHI: May the drafting lawyer be the same NP?
May the witnesses or NP be the two persons who will read and
communicate? According to almost all writers, no one yet says
otherwise, YES, the witnesses and NP may be the two persons. Sir
pwede po bang apat ung idesignate niya? Hindi kasi nakalagay na “at
least two” DLC: since the purpose of requirement is to ensure is what
he wished to be his last will. Anything to make him feel secured should
be allowed. More than substantial compliance, more than full. No
prohibition so no reason to disqualify witness and NP for as long as
they were able to communicate accurately. There should be no reason
to invalidate on that ground.
BLIND
Not prohibited, In fact special requirement!
When is testator blind? It may be inborn or acquired. Inborn hindi
nakakasulat, most likely Braille. Sa elevators, required na ang dots na
yan. Pagsulat niya, may cardboard at stylus tas butas lang sha ng butas.
21 July 2010
Substantial compliance rule in Art. 809
A judge-made doctrine, it’s not in the law, but the courts in the
exercise of their powers in the interest of justice, created this
substantial compliance doctrine. That is still with us. It’s still being
followed and applied by the courts but special substantial compliance
rule was incorporated in A809.
BUT the A809 applies only when it involves the attestation clause. The
defect involves form or language. If the defect involves form or
language, A809 applies. Provided there’s no BAD FAITH FORGERY
FRAUD UNDER IMPROPER PRESSURE AND INFLUENCE. Prove that the
will was infact executed and attested in substatntial compliance with
all requirements of the law.
Page 15 of 63
What do we mean by defect in form? The manner by which the
attestation clause was prepared and executed did not comply with
formalities. E.g. attestation clause was incorporated into the body of
will instead of being written as separate instrument. This is a defect in
the form of AC not the language.
Defect in language? sense conveyed by the written words of the AC is
ambiguous, unclear or unintelligible. Words written in attestation
clause. Rey v Cartajena is in point.
Defect consists in an omission of a fact required by law to appear in the
AC? Is that a defect in form? Definitely not. In language? Acdg to JBL
Reyes, yes, that’s a defect in language. But acdg to Jurado, an absolute
omission of a fact required by law to appear is neither a defect in form
or language. This was the ruling in Gil v Murciano. An old case. In the
first ruling of court in Gil v Murciano, SC ruled that a total omission of a
fact required by law to appear in AC cannot be cured by showing of
substantial compliance by the testator. May nag-dissent in the
decision, si Justice Tuazon. Sabi kasi ng majority, we can only allow
showing of substantial compliance if nothing is missing in AC. There is a
defect merely in language. Dapat walang kulang. If something is
missing in the AC, that cannot be cured by showing that the fact
missing was complied with by the testator. Wala naman nakalagay sa
AC. Pag sabi ng iba, hindi natin pwede payagan na maski wala dun eh
kinomply naman. Gano kadaming facts ang pwedeng mawala? Suppose
wala lahat, hindi sinabi sa AC. Will we allow intro of evidence to show
that there was substantial compliance kahit wala? Eh di tanggalin na
lang ang AC, mawawalan ng value yung AC. Dissent ngayon si Tuazon.
There’s a built-in limitation, we allow showing compliance with a
requirement omitted in the attestation clause if such substantial
compliance is shown by the four corners of the will. Evidence outside is
not admissible to show that compliance with the requirement omitted
in the AC was substantially complied with. Because of that dissent, MR
was filed. While MR was pending, the composition of court changed. I
think nag-resign si Roman Ozaeta to become the administrator or
executor of the estate of Carlos Palanca Sr. in his place was appointed
was Justice Labrador, yung moot court sa taas. Appointed by brotherin-law, Ramon Magsaysay. MR was taken up, nagbago ng botohan.
Justice Labrador sided with Justice Tuazon. The minority ponentia
became the majority ponentia by margin of one vote. Ano ngayon
ruling ni Justice Tuazon which is the doctrine in Gil v Murciano. A total
omission of a fact of compliance with the requirement of the law can
be cured if substantial compliance with such omitted requirement is
shown by the four corners of the will. Ano example nito? Each and
every page was signed by the testator and the witnesses. Pero kung
ang nawala ay yung total number of pages. Baka may sinupress.
Evidence outside the body fo the will is not admissible. Naging minority
si Justice Jugo. Tuazon lifted heavily from JBL Reyes’ opinion.
Comes the case of Caneda v CA: same problem, the AC omitted totally
a fact of compliance with the requirement. Proponents of will
attempted to show and prove to the court that there was substantial
compliance with requirement. Assuming subscom was proven, will it
cure? Ang sabi ni Regalado (San Beda yan eh no. Highest bar daw sabi
niya. That will not make him UP grad. Highest grade nga, San Beda pa
rin sha.) Researcher of REgalado, cited as authority of Desiderio Jurado
(Phil Law School yun, hindi naman UP) and JBL Reyes. Pano niyo sinite
si JBL? Parang yung case yan ngayon ng SC sa comfort women. Kinuote
niya lang isang portion, di niya nakitang contrary positions sila. What is
the remedy against good justice of SC? Impeachment lang naman yan?
Is commission of plagiarism palpable violation of constitution? The
best they can do is to force him to resign just like MVP resigned in the
Ateneo Board. Caneda adopted the interpretation in Gil v Murciano.
Total omission, hindi kasama yan. AND assuming that a defect is one of
form or language. The only evidence admissible are those found in the
four corners of the will.
Iniba ni Caneda: total omission not curable. Pero pag form or language,
curable pero by intrinsic lang.
When examiner pretends to know his law? Sir made some point here.
Review!
HOLOGRAPHIC WILL
When will is holographic will. Only 3 Requirements.
1. Entire written by the hand of testator
2. Signed by the hand of testator
3. Dated by the hand of testator
Must HW be in a language known to testator? Of course, general
requirement yun eh diba?
Sandali muna. Suppose testator is illiterate. May an illiterate man
execute a will? Of course, no express disqualification in the law. If he
maeks a notarial will, there’s an additional requirement. In the eyes of
law, illiterate = blind. But suppose he wants to make a holographic
will? Can he do that? Merong isang writer na ang sabi, YES, si Paras!
The imagination of Paras is fertile, very fertile. How? Kakausap ng isang
taong bumasa at sumulat. By dictation. Gawin mong block print.
Dinikta ko ngayon kay Garcia. Basahin mo nga, o akin na. kokopyahn
painstakingly tapos thumbmark. Si Paras lang nakaisip non! Sige nga.
Think of an argument to demolish Justice Edgardo Paras.
Suppose blind man could read and write in Braille. Before death, he
made will in Braille. Is that a valid will? Yung una nating pinag-usapan,
entirely written in hand of testator. Yung Braille eh kanya bang
sinulat? Kamay naman niya yung ginamit sa pagpuncture. Kugn ganon
argument mo, kamay niya rin anman ang nagpagalaw sa typewriter.
The issue is what do we mean by handwriting?
Sir walang kamay pero adept magsulat gamit ang paa. Parang yung
Filipina who was armless despite handicap became a pilot in US. Kung
marunong dumarive ng eroplano using foot, marunong din sumulat.
Written entirely by foot. Is that a valid will? A sir, substantial
compliance yan. No literal compliance but purpose behind
requirement is served. Science has shown that no two people have the
same handwriting. Imposible na pareho sila handwriting kay
apinapayagan as long as entirely written. ABA kung yung sinulat ng
kamay hindi magkapareho, di lalo na yung paa! Tiyak na magkaiba yun.
Madidiscover kagad the forgery.
Under the law, there’s no other requirement other than those three
which I mentioned. Kailangan ba ng witnesses? Hindi po. Pero may
witness eh. Kumuha tatlo kaibigan. Regarded as surplusage. Hindi
kailangan ng AC yan, pag gumawa sila, treated as surplusage.
Kailangan bang notaryuhin? Suppose testator is deaf as old age,
gumawa ng sulat, pero teacher/lawyer, kiailangan pa ba magcomply sa
special requirement? No, they only apply to notarial will, kasi iba yugn
nagtype at gumawa ng notarial will.
What is the form of a holographic will to be valid? May it be in the
form of a letter to the testaor’s wife? YES, for as long as there was
animus testandi. It may even be in the form of a poem, parang si Soc
Rodrigo (im sure hindi niyo na kilala yun) senator of republic before
martial law. He was a columnist and wrote in TAgalog pero maski
sumusulat or nagtatalumpati, parang si balagtas, my rhyme at meter
pag nagsalita. Parang tumutula. So nung gumawa sha ng will para ring
Page 16 of 63
tula. Valid will as long as there’s animnues testandi at time of
execution.
invalid na will. “IHO…” aggressive. Nakalagay ba ang batas kung san
nakapirma ang tito mo? Look at the will.
What is the effect if not entirely written by the hand of the testator?
The will is void.
I, Juan de la Cruz of sound and disposing mind, by the grace of God, do
hereby declare and publish the following as my last will and testament.
What is “entirely”? Nagkatuluyan si Garcia at Gutierrez. Isang araw,
nakita ni Gutierrez si Garcia sa table nagsusulat. Sweatheart ano sulat
you? Gumagawa me LWT na HW. E di pinabayaan ni Gutierrez. Tas
pinakeelaman niya habang natutulog si Ron. Curiosity kills the cat. She
didn’t like what she read. Kinabukasan, kinonfrotn niya si Ron, nakita
ko LWT mo ha, di ko gusto. Ano ba gusto mo? Gusto ko bigyan mo
yung DI ko. O sha sige sulat mo jan. di pa kasi tapos will niya. To my
wife’s DI, I give legacy of 50K.
Will Eva’s insertion take effect? NO, kasi hinid niya will yun. It will not
take effect.
How about the will as written in the hand of Garcia? Of course not.
Because not entirely written. The entire will is void.
Iho, tingnan mo ito. Di ba ganyan ang pirma ni tito mo?! Wrote his
name is the way he signed. Technically, this is his signature.
Oo nga tita. Pero hanggang ditto lang valid yan. (yung line na merong
signature) A812 (below signature). The moment testator signs, sinasara
na niya. Everything beneath will constitute a new will, which we will
call, “codicil”.
Later on I will show you that he was brilliant and intentionally left it
unsigned to save the widow and children from expense of probate.
The law does not tell where testator must sing BUT A812 implies that it
must be at the end.
Ms. Gutierrez bat parang gustong gusto mong tinutukso kita kay Ron?
Iba ang solushon kung tinapos niya na yung will. Nung makita ni Eva,
may pirma at date na. she prevailed him to give something to DI. O
sige, isulat mo after the signature. Tapos pinirmahan ulit. Will the PS
added by Ms. Gutierrez in her own handwriting but signed and dated
by Mr. Garcia take effect? Of course not.
How about the original will, will it take effect? Of course because that
will. I will show you later on na hindi kasama yung PS sa will. PS is an
attempt to make a codicil.
There are more problems to discuss when we reach alterations.
What signature is sufficient? Pwede ba yung initials? Sabi ni Paras,
hindi pwede! Mali ang mental processing ni Paras kaya absurd.
Pwede bang pumirma with a thumbmark? Baka akala niyo settled yan
ha. Sabi Justice Edwardo Caguioa and Prof. Hector De Leon, a testator
cannot execute HW by sigining it with a thumbmark. Why? Kasi daw
nakalagay sa batas, A811 (in the probate of HW… will and signature are
in the handwriting. Underline handwriting. It’s a mark of the thumb.
Impliedly required by 811. Pero nasa 810 eh yung ‘hand’ lang. MAY
KAKAMAY PA BA SA THUMB? MAY MAS KAMAY PA BA DITO? Literal
sila Caguioa at De Leon. Eh di yung Fil-Am armless pilot eh invalid na
rin! Footwriting yun. Ano ba purpose for reuiring handwriting. That is
itself an identification. Ganun din yung thumbmark. Bakit naman kasi
nasulat na nga yung body ng pirma, thumbmark pa nilagay niya. Patay
na kasi nung tinumbmark. BUT that is a queitson of fact, evidentiary in
nature. Pwede rin kasi sinulat nung kaya pa niya, tapos pinirmahan na
lang nung mahina na. buti na lang hindi ganon view ni Tolentino.
DATE. What date msut testator write on the will? Let’s get a concrete
example. Today, Mr. Garcia decided to write his will. This is a magnum
opus!!! I’m exhausted! So he decided to rest. The opening paragraph,
July 21, 2010. Nalimutan niya hanggang August 21, 2010. Kinuha ulit
ang pad paper. Ano ba ang aking first disposition. To my loving
girlfriend, Eva Gutierrez, I leave… itutuloy ko na lang. Sept. 21, martial
law yun. Naalala niya. Naku, may will ako. Nag-add ng second
disposition. To my loving nephew, tago ulit. October 21, 3rd provision
tas tago ulit. Nov. 21 inilabas ulit. Sabi niya wala na ako idadagdag,
isasara ko na!!! itinago. Kelan niya pinirmahan? Nov. 21. Dec. 21,
kinuha ulit, I will look at my magnum opus. Ay nako! Walang date! 
this will is invalid! No date!
1. Can he add the date on Dec. 21? No provision in the law as to
when he must affix the date. No before while after date. Ang
sinabi lang for validity, it must be dated. ERGO, on Dec. 21,
he may complete the will by dating it. Until then, hindi
complete. Sarado lang, hindi complete.
2. What date will he write? First day of started writing will, Aug
21 - First disposition? Sept 21 – 2nd dispo? Oct. 21 – third?
Nov. 21 - signed? Dec. 21 – discovery that it did not bear a
date? According to writers in Civil Law. Write the true date,
not false date. When is a date “true date”? Any date which
has a connection to the exeution of the will is a true date.
Therefore, all of those may be written to complete the HW
because all those have to do with execution of will. Pag April
21, 2010 ang nilagay, false date kasi without connection to
the execution of HW. That will be a false date that invalidate
the entire will.
SIGNATURE. Where must testator sign? Sa notarial, at the end dapat.
Sir’s PERSONAL EXPERIENCE. upon coming back from master, senior
partner was legal luminary from UP Law with masteral degree in Yale
who became concom delegate. May asthma. Namatay. Week later,
pumunta sakin biyuda. Doctorate Natural Science ng Harvard. Ang tito
mo ay may iniwang LWT. Patingin? Three pieces of yellow pad. Boss ko
yun eh so kinocorrect yugn pleadings namin, alam ko handwriting. Very
nice. Ay walang pirma. Nako tita. This will is void. Why?! Walang pirma
ni tito. Bakit kailangang pirmahan, until then, di tayo sure na tapos na
niya. Pag di pa tapos, di pa pwede probate. Baka may hindi sha
nailagay na provisions upon whch the other provisions depend. Lulugolugo si Biyuda, di makapaniwalang *insert credential here* gumawa ng
In Roxas v De Jesus: ang date ay “Feb ’61”. Eh kung jejemon, pano
issusulat yan? Panahon ngayon ng mga illiterates. Is that sufficient
date to make will valid? Yes, sufficient, the will was valid. Di ba kulang
ng day? Aaah sabi SC, kasi alam niyo, under old CC, the law was very
clear as to date requirement. For a HW to be valid, the day, month and
the year must be written on the will. Pero iba na kasi yung formula sa
NCC, tinanggal yung day, month and year. Date na lang. there must be
reason behind the change. If the intention is to imposed same
requirement for date of valid HW, then the lawmaekrs whould have
simply carried over the wording of old law. Eh binago nila. Alam niyo
naman, pag may binago, there’s peresumption ng reason for the
change. Even assuming the same was intention of congress in changing
Page 17 of 63
formula or wording of provision. Substantial compliance yan. I.e.
Substantial compliance rule equally applies to HW.
Kung kayo ay naguguluhan pa, panahon na para magdrop. Magdoktor
na lang kayo.
Where must date be written? Beginning, body, after will but before
signature, or after signature, back page? Anywhere, but it must be
conclusive that the day is an integral part of the body of the will. Kung
front page ang will tas likod ang date, hindi qualify yun kasi hindi parte
ng will.
ALTERATIONS
Art 814: pwede pa ba ialter ang Notarial Wil? Pwede pa ba ialter ang
NW? YES, you can alter or modify your NW but only through the
execution of a codicil. Execute another will. Pwede bang icorrect na
lang? Lagyan ng caret at ng additional dispositions in his own
handwriting? Will that take effect? Natural hindi. Kasi hindi naman
kasama yang alteration nung inexecute with the witnesses. Hindi
kasama sa will. Ibang wil kasi yan na tinestiguhan ng tatlong testigo
and acknowledged before NP. For this to be modified and order.
Execute another. When we reach codicil, halimbang pinirmahan ni Ron
ito with date. In his own handwriting, will that qualify as
HOLOGRAPHIC CODICIL?
Pero ang gerneal rule: NOtarial will cannot be altered and modified
without codicil.
How about a holographic will, pwede bang i-alter at will? YES. How?
Tatlong ways to alter a written document.
1. Alteration by insertion
2. Alteration by deletion
3. Alteration by substitution (bura tas singit)
Congresswoman Juanita Nepomuceno of Pampanga – lola ni Kiko
Pangilinan yan. Mr. Speaker. Yes what is your desire? Sponsor my bill
calendared for 2nd reading. Congressman from Mindanao. Yield to me?
Will the lady accept an insertion from this gentleman? You cannot
withdraw it without my consent!
To be a valid alteration of a holographic will. It msut be handwriting of
the testator and it must be authenticated by the full signature of the
testator.
Sa kasong ito… gumawa si Ron
1.
2.
3.
Disposition disposition disposition disposition
Disposition disposition disposition disposition
Disposition disposition ^alteration alteration then initialled disposition
disposition
(SGD) Ron Garcia (long signature)
Eva: Punyeta ka. Bakit 5k lang kay DI. Di ba usapan natin 10k?
It was not a valid alteration. Initial lang dib a dapat full sig?
 Sabi ni Paras, hindi pwede initials. Dapat full signature. Kaya
nga as far as Paras is concerned, invalid lahat kasi initial lang.
hindi kasi gets ni Paras yung “full signature” hindi naman
sinabing “long signature.”
What is a full signature? Kung ano ipinirma dun sa ilalim yun ang pirma
kapag inauthenticate ang alteration.
Example.
1.
2.
3.
Disposition disposition disposition disposition
Disposition disposition disposition disposition
Disposition disposition ^alteration alteration then full signature Ron Garcia
disposition disposition
(SGD) RBG (initials lang)
 Alteration won’t take effect either kasi the law means full
signature is the one at the end. Law wants only one
form/type of signature. Akala kasi ni Para sang full signature
ay long signature. Magkaiba yun. Kaya nga maraming
namamatay sa maling akala.
Alteration is invalid, how about will in its original tenor? Will it still take
effect? Aujero v CA. Since original will is valid, it will take effect. What
will not take effect is the alteration.
Buti yan kung alteration eh insertion lang. may matandang dalaga
(kelan ba ang matandang dalaga? Senior citizen stage – 60 years.
Matanda na, dalaga pa rin).
“I institute my brother Jose Julian as my sole and universal heir.”
(Sgd) Juana Change
July 21, 2010
Valid ba ito? Hindi nagsasabing hindi valid, papalabasin ko!
Kaso nagkagalit si Juana at si Jose. So binura niya, ginawang Abad.
Nakalimutan niyang pirmahan hanggang sa kamatayan nia.
Sino na magmamana sa settlement proceeding? Jose: Julian was
designated by way of an alteration. Not authenticated by testatrix but
it will not take effect. Julian: Erase naman yung name mo! Jose:
Alteration din ang cancellation of my name. It did not take effect! Kung
hindi nagtake effect ang designation ni Julian at erasure ni Jose, sino
ang magmamana? Kalaw v Relova. Major errors of SC in succession.
Ang sabi SC “nobody” none was entitled to inherit.
Not Julian: because his designation was clearly an
alteration and for that alteration t be effective, it
msut be authenticated. Since it was not, it was
invalid.
Not Jose: it was not an alteration but just
revocation of provision through cancellation.
Revocation does not require authentication to be
effective.
Ibahin natin ngayon.
1.
2.
3.
Disposition disposition disposition disposition
Disposition disposition disposition disposition
Disposition disposition ^alteration alteration then initialled disposition
disposition
(SGD) RBG
Sir’s opinion as shared by Vitug (di ko lang alam kung sino nauna):
What is the nature of Jose’s erasure? Yes it may be revocation. Pano
papalitan kung hindi revoke. Whether or not revocation, it is
immaterial. We still apply 814 not 820. This is a particular form of
revocation amounting to alteration governed by specific law, 814. Hind
dapat mag-take effect.t there’s danger nab aka mamaya may
nagcancel ng provision na hidni ginawa ng testatrix. How do we know
Page 18 of 63
that it was testator himself who cancelled it out? Dun papasok si
Aujero v CA. Delikado yung kanilang ruling in Kalaw v Relova.
Dangerous precedent.
26 July 2010
PNoy’s first SONA. But DannyCon held class on short notice so I was
absent.
28 July 2010
We are now in incorporation of document by reference Art 827
Sometimes, a testator has so much property to dispose that to identify
each and every property in the will shall result in the will becoming
extra-long or voluminous. Let’s suppose testator has 100 pieces of real
property, if each and every property identified in the will. You can just
imagine how long that will become. And you know, the longer the will
gets, the risk that it will not comply with the formalities also gets
bigger. Halimbawa, 20 pages nay yan, e di possibility of witness lifting
two pages at the same time becomes greater. The shorter the will
therefore, the better. Eh pano yan, katakot-takot properties of
testator. Yung isang client ko, nakafile lahat ng TCTs sa isang filing
cabinet. Tatlong drawers puno ng titulo. Ganon kayaman yung client
ko. Inventory ganito kakapal. Kung lahat to papangalanan, can you just
imagine how long it will become. To aid the testator in making a short
will, ART 827 allows the tstator to incorporate by mere referece
another document or paper. It is incorporated in the will by mere
reference.
E.g. Inventory of all his assets. In his will, ganito na lang nakalagay. To
my oldest son, I give all properties in page 1-4.
However for incorporation to be effective, there are requisites
enumerated in Art. 827,
1. Document or paper referred to in the will must be in
existence at the time of the execution of the will.
Implications of this requirement? The
incorporation is invalid. Only the incorporation, not
the will itself. The will remains a valid will, but the
incorporation will be ineffective.
2. The will msut clearly describe and identify the document or
paper stating among other things the
a. Number of pages of the document or of the paper
3. Signed by the testator and the witnesses on each and every
page, except
a. Voluminious books of account or documents
4. During probate the document must be identified in court as
the document referred to in the will.
Must AC of a notarial will state about the incorporation by reference of
a document or a paper? No requirement
Are all these requirements to be effective, mandatory? E.g. signed by
testator and witnesses on each and every page. In my opinion, it is not
mandatory because there is a built-in eception. How do we know
whether it’s voluminous? How many pages should there be and so the
signature on the pages may be dispensed with. Suppose it’s not an
inventory but another paper, how long must the paper be to be
voluminous so that the requirement be dispensed with.
How about a holographic will, may a holographic will incorporate by
reference another document? If you will look at 827, there’s a
requirement that each and every page must be signed by the testator
and the witnesses. BUT there are no witnesses in the case of the
holographic will. Does that imply that incorporation is allowed only in
notarial will? Eh sir, sabi mo hindi naman mandatory yun, so siguro pag
holographic hindi na rin kailangan. Anyway, wala pa naman sigurong
nangyayaring ganyan. Baka makickout kayo dahil dito sa subject na to
sa college na ito pero mabibilang sa daliri yung hahawak or nakhaawak
ng settlement of estate cases. In my yers of practice, 5 settlement case
lang nahawakan ko.
Remember the principles on incorporation, this will be discussed later
in republication.
CODICILS
As we have discussed in our past sessions, the testator may modify or
alter his holographic will by simply writing or inserting in his own
handwriting the alteration or simply cancelling the porition of his will
he wanted to delete or delete and insert a propvision. But for this
alteration to be effective, it only requires the authentication by the
tsetaotr with his full signature. How about in the case of a notarial will,
how may a testator modify his notarial will?
He can modify through the execution of a codicil. Under A825, it is a
“supplement” or “addition to a will” made after execution of will,
annexed to be taken as part thereof. Fucntion of explaining a
disposition contained in the origialn which may be ambiguous, in order
to remove the ambiguity there is the codicil to explain it away.
Codicil may also revoke some dispositions of the prior will. Ayaw na
bigyan mana si Pedro so tinanggal na. Hereby revoked.
Disposition may be modified. I leave to Pedro ½ of my entire estate,
nagbago ang isip, mashado malaki ½ so 1/3 na lang. disposition in favor
of the nephew reduced to only 1/3.
For this codicil to be valid, it must be executed in accordance with all
the formalites and requirements of a valid will.
Ano nga yung mga reuirements na yun?
1. At least 18
2. Testamentary capacity
3. Animus testandi
4. Compliance with the formalities prescribed by law
5. Executed freely and voluntarily
Pag nag-concur yang lima nay an, will was duly executed.
Difference between a will and a codicil
INSOFAR AS REQUIREMENTS FOR VALIDITY: no difference
San nagkaiba? Codicil necessarily refers to a prior will. If it doesn’t
hindi sha codicil.
Suppose the will was a notarial will, may the testator execute a
holographic codicil? Should they be the same form? No, a codicil need
not be executed in the same form as the will it refers to. Why? Kasi
yung wording ng A826: ang important word diyan? Kung hindi
naunderline-an, hindi pala ako brilliant? Ang uunderline jan, yung word
na “a” !!! Iba yan kung “the” which means dapat same form as the will
it refers to.
Ergo, holo will may have holo codicil and notarial may have holo
codicil. Pero may problema tayo jan.
Notarial will.
Page 19 of 63
MARGINAL SIGNATURE 4X
4. disposition disposition. ^ALTERATION signature and date
5. disposition disposition
PS modification modification signature and date
Will the modification take effect?
2nd one (PS) suppose PS was written on separate sheet of paper?
Holographic will kasi separate document. Pero kapag ito tinaggal sa
page na ito. Cut out natin yan, wlaang meaning. Kasi ininesert sha in
such a way na may kinalaman sa number 5. There will be no problem
kung separate sheet PERO “PS In relation to disposition number 5.
Yung changes dito maiintindihan mo lang kasi nakasunod sha sa
number 5.
Will this qualify as holographic coidicil?
As it is, magkaqualify yung PS. Pero pano yung may caret, ininsert lang
sa notarial will, may prima at date. Take note that law does not require
codicil to be a separate instrument. On the page where the prior will is
written. Dun na rin niya isinulat. Wala pa kaso yan. Pero
nakaencounter na ako niyan. Alam mo naman mga Pinoy mahilig sa
ganayn. Notarial will na, kinocorrect pa. Opinion ko: yung PS
maliwagag na holographic codicil pero yung insertion sa taas, hindi pa
ako kombinsido na holographic codicil. Pero baka pwede rin kasi will di
naman yung kinorrect niya. Why not take together? One becomes
holographic codicil of the notarial will.
Maliwanag yan Malabo? Maliwanag yan.
Conflict between original will and subsequent codicil, which one
prevails? Codicil prevails because it is a much later expression of the
tsetator’s will. Sha yung amendatory law kung batas pinag-uusapan
natin. It’s the latest amendment prevail over dispositions of a prior
will.
put that into writing. Later nag-away sila ni Sharon dahil hindi bumoto
si Tito Sotto sa kanya. Kiko may still revoke his will. 828 prohibits any
waiver on the right to revoke te will. Also prohibits any restriction on
any right of testator to revoke his will.
When is revocation valid?
May sinusunod din tayong requirements:
1.
Testamentary capacity
a. Age
b. Soundness of mind
c. Not expressly disqualified
Sandali lang sir, di naman ako gumagawa ng will ah. Bat pa kailangan
niyan? In revoking a will, He is actually disposing estate indirectly.
Indirect disposition of his estate kapag nirevoke ang will. Ron decided
not to marry, tumandang binata, nameet niya ngayon ang kaibigan
niyang DI. Ang gaganda ng mga DI na babae diba? Walang isang kusing
mga kapatid niya. Pwede yun. Ron has no compulsory heirs. Pero
nagalit sha kay DI so nirevoke ang will. Kanino mapupunta ang mga
estate, e di sa mga kapatid niya sa legal heirs. Indirect disposition in
favor of his legal heirs.
2.
3.
Animus revocandi
Compliance with the formalities prescribed by law for a valid
or effective revocation
 It depends on how revocation will be done. Pano ba
nirerevoke ang isang will? SO TYPES/MANNER OF
REVOCATION
4.
Must be done freely and voluntarily
TYPES/MANNER OF REVOCATION
REVOCATION
Revocation are of two types.
Entire will / total
revocation
Revocation
Dispositions
contained in the
will / partial
Act of the mind of testator terminating the capacity of the will,
manifested by some outward or visible act or sing symbolic thereof.
Testator will render the entire will ineffective or will render a
disposition/s contained in the will inoperative or ineffective.
When may testator revoke? Art 828: Any time before his death
On what grounds may testator revoke his will? No ground required by
law to justify revocation fo the law. As a general rule thereof, the
testator may revoke his will at his pleasure. No matter what his reason
is, he may revoke his will.
Maliwanag Malabo? Maliwanag yan.
May a testator bind himself for a valuable consideration not to
revoke his will? Halimbawa gumawa ng will si kiko pangilinan.
Pamamanahan ko si KC. Sabi ni Sharon, sigurado ka bang
pamamanahan mo si KC?! Magcocontriubte ako ng 1M sa campaign
fund mo upon the condition na hindi mo irerevoke yan. Sige!!! Let’s
by operation
of law
Revocation
act of the
testator
execution of a
revoking will
act of
destruction
By operation of law
E.g. the guilty spouse in case of annulment
Testator has nothing to do with it
Act of the testator
Formalities of revoking will
Formalities of act of destruction
What law governs the formalities of a valid revocation of will or
disposition thereof? Under the law, the applicable law depends on
whether testator is docmiciled in the Phil or is effected in/out of the
country. If done in the Phil by a resident, resident has to observe Phil
law. If the resident is an alien. Can he revoke the will in accordance
with law of his nationality? 829 does not tell us that he can, rather it
has to be revoked in accordance with Phil law, applying general law, lex
loci celebrationis.
Page 20 of 63
How about done in the Phil by a non-resident? Same rule, lex loci
celelbrationis. Non-resident has to apply Phil law if revoke will in the
Phil
What if done outside Phil by a non-resident? Law of the palce where
will executed or the testator’s domicile. How about law of place where
will is to be revoked? Silent 829, yes he may observe law of place
where revocation takes place. Lex loci celebrationis in art 17.
Will revoked abroad by a resident of the Phil? No special rule, hence
apply art 17. Law of the place where revocation will take place.
But may the Filipino testator revoke his will outside the Phil in
accordance with Phil law? Law is silent. But DLC that should be allowed
because that is the normal runt of things. Pinoy abroad and resident of
Phil will not have knowledge of the law of the place where he is and
where he will revoke the will.
FORMALITIES when testator will revoke his will by executing
subsequent and revoking will
If you will look at 830, the law speaks of some will, codicil or other
writing executed as provided in case of wills.
“Other writing executed as provided in case of wills” what’s this
animal? DLC’s opinion: refers to a donation mortis causa. To be valid
must be executed as in the case of a will. If a donation mortis causa
executed without complying with formalities of the will, it’s invalid.
Ang macocover ng “other writng” donation MC.
When a subseqnet will is executed by testator to revoke a prior will,
revocation of the entire will in which case “total” , if only some
dispositions “partial”
PARTIAL (disposition only) Such revocation may also be total (delete
the entire disposition) or partial (reduced to smaller amount)
May revocation be subject to a condition? Pwede pala coniditonal yan.
I’m sure you have learned in ObliCon what a condition is. A condition is
a future event the happening of which is uncertain. Suppose the event
is a “past event,” may it be a condition. In what instance does it
become a condition? If the happening is yet unknown. “Impossible
condition” pamamanahan ko si Ron kapag siya ay naging gwapo, pag
nanganak si Ron, pagputi ng uwak. Eh pano yung albino.
Condition may either be suspensive or resolutory. May the revocation
of a will subject to a suspenseive condition? Yes. The revocation is
made subject to a happening of an condition.
Resolutory condition? No. the moment a will is revoked, revocation
takes effect instantly. For that condition to be set aside, the testator
must republish the will. The happening of a resolutory condition, is not
a form of republication. Revoke ka ngayon ha pero this revocation will
terminate pag natapos yung condition.
IF the testator will revoke his prior will by executing a subsequent will,
revocation may be express (when there is a revocatory clause; e.g. I
revoke the prior will I executed in 1988) OR implied/by implication
(when the sbuseqeuent will contains no revocatory clause but the
dispositions are inconsistent with dispositions of the prior will to that
extent the prior will is revoked.)
REQUISITES for the revoking will to be valid. The same as in the case of
any ordinary will.
1. Testamentary capacity
2. Compliance with formalities
a. notarial
3.
4.
b. holographic
Animus testandi
Freely and voluntarily executed
Revocation will only take effect when the revoking will is allowed
probate. If denied probate, the prior will remains unaffected. Para
marevoke niya yung prior will subsequent will must be admitted to
probate. Pag nadeny ng probate, walang mangyayair, prior will remains
unaffected.
“PHYSICAL ACT OF DESTRUCTION”
Testator is allowed to revoke a will by destroying it physically.
“burning, tearing, cancelling, or obliterating” Are these acts
exclusively? Pwede rin yung crumpling and throwing it in the waste
basket.
For a physical act of destruction to take effect, ganon din ang
requirements. Yung 5 points. + physical act of destruction.
Take note, that the physical act of destruction must appear on the face
of the will. Pano mo sasabihing sinunog kung buong buo pa yung will.
There must be an act of destruction appearing on the face of the will.
Illustrate:
Si Ron, decided to remain a bachelor forever. Nagkagalit sila ni Eva.
Heartbroken and in despair kaya naging woman-hater. Di na magaasawa. He lived in the company of his nephews. Isa dun sa nephew ay
paborito niya, hindi namna niya minomolest. He made a will giving ½ of
his estate to his favorite nephew, let’s call him “Berto” Isang araw
nagalit sha kay Berto kasi he learned that Berto was courting the
daughter of Eva. E diba galit sha kay Eva? Tinawag si Berto “I want to
make this very very clear. Kapag napangasawa mo ang anak ni Eva,
tatanggalan kita ng mana.” Kaso pag puso na pinag-ususapna, over the
objection of Ron, nagtuloy-tuloy ng ligaw si Berto sa daughter ni Eva na
itago natin sa pangalang Eva II. Eh yung kanyang maid si Annie,
nagsumbong, sabi kay Ron, “Kuya, mag-on napo sina Berto at Eva.”
Sigurado ka. Nagkikissing kissing po doon. Sabi ngayon ni Ron, in one
family gathering hosted by him. Birthday niya. Inannounce niya
publicly sa mga kamag-anak. Mabait sanang bata pero suwail (defiant
in English). Sa kanya ko sana ipapamana yung half, pero ngayon pa lang
inaannounce ko sa inyo, tinatanggalan ko na sha ng mana! Inutusan
niya si Annie, kunin mo yung will sa kwarto ko. Sa sama ng loob,
inatake sa puso, nalalag sa floor at namatay. Di na nakuha ni Ani yung
will. Will Berto inherit the one half given him in will? Depends on the
validity of the will. Of course it is still valid becaue it was not revoked.
Mere expression of an intention is not enough. Testator must do
something! Revoking will or sirain niya yung will physically.
Baguhin natin yugn script. Hindi inatake sa puso si Ron. Inutusan niya si
Ani, kunin ang aking testamento, pronto! Eto po. Ito ba? Ito nga!
Itinapon niya sa bonfire. Matapos itapon, umalis kasi ihing ihi na sha.
Ito naming si Ani, cursh pala si Berto, snatched the enveloped from the
fire. Ang nasunog lang eh yung envelope. Yung will eh unscathed. Wala
man lamang sign na sinunog. Hindi alam ni Ron yun. Namatay si Ron.
Will he thought he already revoked is submitted for probate. Still a
valid will because the act of destruction must appear on the face of the
will. Only evidence of destruction is the will itself.
Must destruction be total for the will to be effective? No. Hindi naman
kailangan. If the testator burned the will, not required that the entire
will be burned into ashes. Enough that there is sign of act of
destruction performed by the testator on the will.
Page 21 of 63
For the same reason, it was accidentally destroyed. Naglilinis si Ron ng
kwarto, nakakita ng old envelope without realizing that it was his will.
Was the will effectively revoked? No, no animus revocandi. Animus
revocandi must be coupled by act of destruction appearing on the face
of the will.
Suppose this happens: Ani get my will. Sisirain natin! Pinunit na ni Ani
before pa umabot kay Ron. Destruction may be done by 3rd party but
to be valid:
1. Destruction must be done at the express direction of the
testator
2. Done in the presence of the testator.
In case of Ani, not expressly directed/instructed to destroy the will. She
did it on her own volition. She destroyed the will not in the presence of
the testator. Eh sir napunit na. pano pa irerevoek yun ngayon? Eh di
sunugin natin! Valid pa rin yun kahit punit na. The buring of the torn
pieices will effectively produce revocation. Ang problem… suppose sa
halip pinunit ni Ani, sinunog niya. Ani is always ahead of her amo. Hindi
pa hinihinigi ni Pinoy, nakaprepare na. Pano pa irerevoke ni Ron? Eh di
gagawa na lang sha ng subsequent will? Katawa-tawa absurd diba?
Senator Tolentino, commented on that possibility. Absurd to require
testator to revoke a will that was already burned into ashes. Common
sense dictates that ratification of revocation by testator should
validate. Opinion lang ni Arthur yun. Law abhors the absurd.
Act of destruction must be completed while animus revocandi is
existing. Ron pahinging scrap paper na SCRA. Umiiyak si Ron, pumasok
si Berto break na sila. Natigil yung pagpunit halfway. So tinape niya ulit.
Will was not revoked because as far as Ron is concerned, the act of
destruction was not yet complete. Nagbago yung isip niya. Kaya nga
pinaste niya.
What if natuloy yung punit tas tinapon sa waste can. Kinabukasan
binreak ko nap o, “Tito bireak ko na. I love you tito!” Kinuha niya yung
will at iniscotch tape niya. Makakpaagmana pa ba si Berto? Was the
will revoked? Yes. Kasi nung pinunit at itinapon na. as far as law is
concerned, act of destruction already complete!
The moment act of revocation completed, revocation takes effect
immediately and totally.
Pinagdikit naman niya! Hindi ba yung intention to make the will valid
again? It may be so, but you can only make a revoked will valid again
through act of republication and pasting them together is not
republication under the law! Maliwanag Malabo? Maliwanag yan.
ACTS OF DESTRUCTION
Burning – sinunog
Tearing – pinunit
Cancelling – how different is this from obliteration? An act which
shows the state of the mind of the testator to remove/delete a word
from but without rendering it illegible. To render the entire document
a nullity.
E.g. Notarial will.
WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL
WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL
WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL
T
WWW
There IS A LINE drawn diagonally. Mas maganda kung merong written
word na cancelled or void. Not obliteration kasi readable pa yung
words but the line implies something.
Obliteration is to render a written word illegible or unreadable. Kung
amkikita niyo yung original manuscript ni Rizal ng Noli me Tangere,
hindi mo makita. Pero ngayon kita na sa spectography. Xray or other
radiation, makikita yung original word na gusto sana niyang gamitin.
Kung one line lang yung strikethrough, cancellation yan. If one word
lang, only the disposition where the world was used will be revoked,
not the entire will. In which case “revocation of a dsipostion” not
revocation of a will.
For obliteration/cancellation to be effective. Does it require
authentication by signature to be effective? Cancellation may be
proven in the probate as having been done by the testator. Proven by
competent evidence. not required that it should be authenticated by
the testator. Prov ein court that it was Ani on her own volition without
ron’s instructions.
How about in the case of a holographic will?
On testator’s own handwriting WILL WILL WILL WILL WILL
WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL
WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL WILL
T
No need for an authentication. This is not an alteration of the will. It’s a
cancellation and not a revocation of the entire will. We apply 830,
entire will was revocation. Not just a mere alteration. Ang problem is
Kalaw v Relova. Ang sabi dun:
I institute Jose Juan is my sole and universal heir.
T
Ano’ng sabi dito? Isa lang ang provision ng will. It’s a revocation (not
require authentication by signature) but it’s an alteration of the body
of the will. It has to be authenticate by the full signature of the
testator. Otherwise, application of the law will not only be absurd but
also funny. Anythign that will change is always a revocation. Increase
or reduce is partial revocation. Ang sabi ng Kalaw, if it will amount to
revocation, hindi kaialnagn ng authentication. Kapag nagbabago ang
disposition, pwede ialter hindi kailagnan altearation pero kung iaalter
yung provision na walang effect, kailangan ng authentication? Bakit
wala nga effect diba?? Application of art 824 will become absurd. In
effect, any modification that will not altered to be authenticated even
no effect ton the substance of the provision. Pero pag magbabago,
pwede walang authentication. I join Justice Vitug in his comment. It’s a
wrong decision! Dapat nga mag-amount sa partial revocation para
iauthenticate niya! Yung mga mahirap na tanong nasa exam yan.
2 August 2010
The last topic was applicability of provisions of revocation to
holographic wills. i.e. “If it’s an alteration of a holographic will, even if
such alteration will amount to partial revocation (it always does), it
should comply with 814 otherwise, we will be having absurd results.”
Every change in the holographic will will amount to partial revocation
of the altered provision. If we follow Kalaw v Relova, alteration will
apply only if the change introduced in the body of the holographic will
will not amount to partial revocation. Walang ganun, that’s absurd.
Page 22 of 63
Walang nagbago sa will yet it has to be authenticated by the full
signature.
We go now to: DESTRUCTION BY A THIRD PARTY
Not effective but how will the testator revoke it? Invalid already.
Impractical to Follow senator Tolentino’s suggestion to allow
confirmation by the testator to allow such destruction.
REVOCATION BASED ON A FALSE CUASE
While it is not required to have a cause to revoke will, common sense
dictates he will not revoke unless with a reason, no matter how
capricious it is, law will recognize. How about if the cause is false or
illegal? What is the effect, under A833, revocation is null and void.
When is a cause false? How do we establish that a cause is false?
Acting on a false cause. Ano ginawa mo kay Eva? Bakit nawawala si
Eva?
Nawala yung favorite nephew ni Ron, sabi ni Ani nakipagtanan sa anak
ni Eva. Eh hiindi naman pala nagtanan, sanga-sanga lang talaga dila ni
Ani. Ron revoked his will. That’s false cause.
How do we establish the falsity of the cause? It depends on the
manner the will is revoked. If the will is revoked by a subsequent will or
codicil, the false cause must appear in the revoking will. It is now for
the oppositors of probate of the will to prove the falsity of the cause at
hearing. If no cause is stated in the revoking will, then we cannot prove
by evidence that the revocation was the cause of a cause and that the
cause is false.
E.g. Ron executed a will, ganito lang nakalagay, after machismisan ni
Ani, “I revoke the disposition in favor of my nephew Jose Madrigal in
the will I executed in 2001.” Hindi niya sinabi sa revoking will kung ano
yung reason. Pwede ba yung kanyang nephew sabihin, I oppose the
probate of the revoking will on the ground of false cause. He revoked it
acitng on a mistaken belief that I eloped with his former gf. Can the
court act favorably for the nephew? No, we cannot prove this cause. If
he did not state in his revoking will, there’s no cause to be proved.
How about if will was revoked through act of destruction? Can we
prove that destruction was moved by a false ground? Yes, kasi wala
naming nakalagay sa batas, kaya lang delikado, mas mahirap
pautnayan. In the absence of any law to the contrary, if the act of
revocation was through destruction of thew ill, then it may be proved
by all kidns of evidence to show that revocation was based on a cause
and that the casue was false.
DOCTRINE OF DEPENDENT RELATIVE REVOCATION
Illustration: Series of factual circumstances.
1.
Testator made a will. Later, he revoked the will by executing
2nd will expressly revoking the 1st. IT was declared in the 2nd
that should 2nd be denied probate, revocation shall
nonetheless be effective.
The will containing revocation being void,
revocation coantained in the will msut also be void.
Hindi pwedeng valid yung lalagyan pero valid yung
naklaagay.
Is this an application of doctrine of relative
revocation? No. kasi hinid valid yung revocation.
Pano ba nagkakaron ng application of DDR?
2. Testator executed a will. Later on, he executed a 2nd will
expressly revoking 1st. believing 2nd will is valid, testator
destroyed the first. But the 2nd will was invalid and denied
probate for failure to comply with certain formal
requirements. Was the first will revoked?
In reality if you analyze the facts, DDR is a specie of
revocation based on a false cause. The destruction
of the 1st will was based on the false cause that the
2nd will was valid.
Act of destruction is therefore void. 1st has
remained valid.
Yung mga writers jan ang daming siansabi. It’s an
example of a revocation based on a false cause.
Favorite ko yan. You might be surprised how the problems come out.
REPUBLICATION AND REVIVAL
What is meant by republication?
process of giving validity to a will which is useless or has become
useless because it was void OR because it had been revoked. A will
which is void, if you want to make it valid, republication is the process.
Ano yung revival?
Process of restoring the operation of a previously revoked will by
operation of law. Validity of the will revoked is restored not by act of
testator but by the act of law.
REPUBLICATION
Necessarily act of testator
Both void and revoked will
REVIVAL
Not act of testator but operation
of law
Only revoked will
How is republication accomplished? Under the law, it is accomplished
in 2 ways:
1. By re-execution (Art 835)
2. By reference in another valid will or codicil (Art 836)
RE-EXECUTION
Make a new will from scratch. Testator has to execute his will by
complying with all the formalities for making a valid will.
E.g. Testator executed notarial will. Later he changed his mind and
revoked the will by cancellation. So nilagyan ng line yung face ng will +
cancelled. Later on nagbago isip niya so naglagay sha ulit ng line “Will
restored. Cancellation void.” Was the will that was previously revoked
restored to its validity? No, dalawa lang manners of republication, reexecution when he cancelled/set asise the cancellation, it’s niehter
reexeuction nor reference in another will/codicil. He has to start from
scratch i.e. sign a will at the end thereof, presence of instrumental
witnesses, sign again each and every page, in the presence and
attestation clause. Appear before a notary public to acknowledge
execution of a will.
The notarial will was executed by a testator but later on, it truned out
that one of the witnesses was disqualified (previously convicted of
crime involving falsification, false testimony and perjury). What was
the effect of disqualification? Net effect is the invalidity of the will.
There were aonly two winteses to such a will, it will certainly be denied
probate when presented. How may the testator make this will valid?
Ang ginawa nung testator, kumuha ng piece of paper and executed a
holographic will, “I Ron Garcia of sound and disposing mind do hereby
order that the will I executed in 2010 be republished through this
holographic will.” Iyan ay parang reference to a void will in a
subsequent will or codicil. Was the first will republished through this
reference in the subsequent holographic will? No, it was not
Page 23 of 63
republished. Bcause A835 is very clear. A will which is void as to form
cannot be republished except by reexecution, not reference by
another will or codicil. Since void as to form, only one way to publish it
e.g. reexecution.
Kung gusto niya ng holographic, kopyahin niya yun by hand. Kung
gusto ng notarial will, eh di iexecute ulit.
When is a will void but not as to form?
Implication: void for a reason other than as to form, reference by
codicil is enough.
Go back to the elements of due execution.
1. Testamentary capacity
2. Animus testandi
3. Compliance with formalities
4. Freely and voluntarily
Void as to form: nullity is because of number 3. For instance, if it’s due
to testamentary capacity, pwedeng irepublish through reference in a
codicil.
If the will is to be republished by reference in another will or codicil,
must the reference comply with the rerquirements of A827
(incorporation of a document by reference)? Anoyung requirement
dun: document incorporated not only referred and identified, but
signed in each and every page by testator and witnesses. Sa aksong ito,
holographic will si Ron, order the republication of the first will
executed, kailangan ba magcomply sa A827? So far, only one author
(believed, dahil patay na sha) Justice Desiderio Jurado is wrong. 827
refers to document and other papers, they are short of a will. Kapagka
will, 836 ang mag-aapply.
Binura niya yung pirma at the end of the will. He wanted to make will
valid, so pinirma niya ulit. Was the will restored to validity? Of course it
was not restored. Reaffixing is not reexecution. Eh sir, kung hindi reexecution yun, can he just make holographic will by mere reference to
the subsequent will? That cannot be republished by mere reference,
after blotting out signature, it was will void as to form and not
republishable by direct execution.
Problem discussed by Paras in his book. Inaassign si Paras pero lagging
binabanatan sa discussion, para masaya. Pag hindi tayo nakakontra sa
UP, hindi tayo masaya. The moment naging pro-institution tayo,
Atenista na tayo. Laging tayong against institution. In UP once, issued
an order requiring candidates to pay. Property qualification yun
protesta kami tas withdraw sila.
The testator made a will with only two witnesses at the time law
required three. Law was amended reducing number to two. Much later
the testator executed a valid codicil making reference ot the prior will,
was the first will republished? Accdg. to Paras. A will republished by a
codicil is deemed to have been made/executed as of the same date as
the codicil was executed. San niya nakuha yun?
Ergo, law will govern the form of the prior will should not be the law in
force at the time prior will was executed but by the law in force at the
time it was referred to at the time of the codicil. San niya nakuha yun?
If he’s correct, the reference is sufficient to republish the prior will. Any
question?
REVIVAL
Executed a first will.
Much later, he changed his mind and executed a second will expressly
revoking the first. Eh pababago-bago talaga ng isip, he executed a third
will expressly revoking the second.
Assuming that all the three wills are valid as to form/duly executed,
valid talaga when it comes to due execution.
Yung bang 1st will ay effective pa?
Magic notes! You learned your lesson. Not revived. Assuming they
were all executed, nung inexecute yung 2nd, revoked na si 1st will. For
the 1st will to be restored, it has to be republished by testator or
revived by law. Yung third will, hindi ba repubulicaiton of 1st will yan
when he revoked the 2nd? No it’s not. Reexecution ba yan? By
reference? Lalong hindi.
Sabi ng batas, first will not revived by the execution of the third will.
Mangyayari lang ito kapag duly executed. If the 2nd will was not valid, it
did not produce any effect at all, same reason that third will produce
any effect.t ang presumption ay duly executed lahat.
Sabi ng batas, hindi revival ito under A837. If not, when is there
revival? Only instance of revival: When the 2nd will only impliedly
revoked the 1st will. And the 3rd will expressly revoked the 3rd will.
Suppose the 2nd will impliedly revoked the 1st will. But the 2nd will was
revoked by destruction? It’s possible for the two wills to be valid as to
provisions that are consistent with each other.
Suppose the 2nd will is impliedly revoked by a 3rd one, what happens to
the 1st will? It’s not proper to talk about revival kasi 1st will did not go
out of existence. So there are three wills which may be effective at the
same time insofar as provisions not inconsistent. If the 3rd will
expressly revoke the 2nd which impliedly revoked the 1st, the execution
of the second will did not render the provisions of the 1st. only those
inconsistent with the 2nd. Ang marerevive lang eh yung mga narevoke.
Revocation of the 2nd will removed the inconsistency which revived the
1st.
Also true if the removal of the inconsistent provisions were by
execution of 3rd (?)…
Revocation of 2nd will therefore will come about even if the revocation
of the 2nd was done through an act of destruction. Pag sinira mo yun,
masisisra yun totally. Total revocation. Then revive provisions which
were inconsistent with the 2nd will.
Bakit kung express yung revocation, bakit hindi revived yung first?
Logically dapat marevive kaso pinagbawal ng A837.
What is the reason behind 837? Simple lang yan. Eh kasi daw, between
express and implied eh mahirapan tayong iinfer na revocation of the
express revived the entire thing.
Will revival or republication apply to a mere testamentary disposition?
A835 applies to will only, not dispositions. How does he restore the
corssed out disposition? Apply by analogy. Ang problem jan, kapag
kinross out niya, paano sasabihin na void as to form, void for a reason
other than a form. Pwede ba by mere reference? In Sir’s opinion: If
that cancelled provision amount to not valid as to form, pwede pa rin
rreexecuting the revoked disposition.
ALLOWANCE OF WILL
4 August 2010
ALLOWANCE OF WILLS
Page 24 of 63
What do we mean by allowance of wills? The court proceeding where
extrinsic validity of the will is decreed.
Why necessary? In A838, no will shall pass real/property unless proved
and allowed in accordance with RoC. So there has to be a court order
declaring that the will is duly executed. That declaration is called
allowance of wills. Reason why there has to be a court declaration that
the will was duly executed, to ensure that the will was indeed that of
the testator, that it’s not a forgery so that the properties fo the
decedent will be distributed in accordance with his true wishes.
How do we call the proceeding for proving and allowing wills? Probate.
In practice, you don’t file action for probate unless it’s a pre or ante
mortem probate.
What is to be proven in the probate proceeding? The due execution of
the will. Otherwise called extrinsic validity of the will. When is it duly
executed, we have discussed in our past sessions, the four
requirements must be present.
Intrinsic validity of the will is not the subject matter of probate. This
involves the validity of the dispositions contained in the will. Not
included in the probate proceeding.
Probate of a will maybe before the death or after the death of the
testator.
If before the death – call it ante mortem probate. Filed by the testator
himself who must still be alive during that proceeding. He will be the
one to file it. The caption of the case he will file is “petition for probate
of a will”
Probate may be done after the death – it’s the usual case. Very few are
the cases wehre a will is probated before death of the testator. Most
of the probate cases are done post-mortem. When it is post-mortem,
what petition is filed in court, “petition for settlement of estate”
1.
Testamentary – petition for the settlement of the testate
estate
Divided into several parts
a. Probate proceeding
b. When admitted for probate – declaration of heirs
c. Partition
But from the time settlement proceeding is filed up to partition, the
estate is under administration. Executor named in the will applies to be
named the administrator. Pag-aaaralan niyo lahat yan sa SpecPro.
Yung iba ang unang ginagawa, pinag-iisa nila muna. Fuse together two
causes/steps. I.e. Petition for ___ where the will is attached.
Appointment of the administrator and the probate of the will. Dalawa
in two stages.
2.
Intestate
Intrinsic validyt of the will is not included in the coverage of probate.
Dati kasi kapag probate, it only refers to the proving of a will. Pag
sinabing probate, necessarily involves proving a will. Pero ngayon hindi
na, probate may also refer to settlement proceeding. That’s why if you
look at RoC the word probate includes the entire settlement of estate
proceeding. They call the proceeding probate. But technically,
settlement proceeding is different from probate. In reality probate is a
mere stage/phase of the settlement proceeding.
May the heirs choose not to probate the will but distributed the estate
nonetheless in accordance with the provision of the will. Wag na natin
dalhin sa court yan, gagastos pa tayo. Hire a lawyer acceptance fee
upfront. Madugo ang acceptance fee ni Concepcion. Hindi naman
pwede kasi na lahat ng lawyers pareho, may mas magagaling. Hindi
pwedeng sumingil ng maliit yung mga magagaling na lawyers. Meron
pang publication yan (cost of publishing setting the initial hearing of
the proceeding). Everytime magkakaroon ng hearing, natural may
appearance fee pa everyime yan. Kung bago, maliit lang appearance
fee. Katulad ni Titong Mendoza, mamumulubi ka dun. Mabigat bayad
dun. At hindi lang yun. If you submit the will to court for probate, it
becomes a public matter, the BIR can always look at the properties
listed in the will disposed to the heirs. Baka naman hindi niyo na
macontrol yung taxes niyan. It becomes an open book.
There’s temptation not to submit will to probate. They agreed among
themselves to implement the will to the letter. Okay ba yun? No,
whenever there’s a will left behind by testator, probate is mandatory.
A838. I remember one of my professors, sa klase tinanong niya kami.
Bakit kailangan mandatory, pwede naman isupress ang will. Under the
rules, the person in possession of will has to submit to court within
certain period of time under pain of contempt. Sabi teacher ko, sino
naman magrereklamo dun? Mag-execute na lang sila extrajudicial
settlement of the estate. Subornation of perjury. Hindi tatanggapin ng
register of deeds kung may propreties kung walang maliwanag
nakalagay dun na decedent died without a will. Pag nilagay mo na left
no will, that’s why you’re dividing among yourselves, perjury yun kasi
under oath. Required by law to be submitted to register of deeds.
Nabigla si teacher. Unethical angle yung tinuturo niya. Nagtuturo
shang illegal. Mandatory submission to court under pain of contempt.
Settling it extrajudiciary, all the signatories would commit perjury.
Sir perjury lang naman yun, kaya natin lusutan yan. Kesa magbayad ako
kay Atty. Concepcion ng malaki, sige pakulong na lang.
When somebody dies without a will, how will the properties of
decedent transferred to heirs?
1. Kung cash dun sa korteng baboy (piggy bank kaya nga
korteng baboy). Buddha na maraming bata or kawayan or
bao ng niyog. Alkansha. Kung yung pera andun, no need for
EJC kasi kukupitin na lang yun.
2. Pieces of jewelry, walang title yan, easily distributed. Nobody
will run after them.
3. Bank deposit na hindi and/or
4. Vehicles registered in name of decedent
5. Lupa in TCT
How do you transfer documents in name of heirs? There must be a
deed of conveyance. Donation, sale, trust or succession.
EJD allowed only when decedent left no will. Ngayon kung meron/wala
at nagkasundo-sundo a settlement proceeding filed in court. Court will
adjudicate properties of estate to the heirs. Document of the
conveyance that you will present to the register of deeds. Authorize
them TCT outstanding and issue new one in the named order.
Kailangan ng “court order”
May the will itself provide that it should not be submitted to court for
probate? Para makatipid ang mga heredero. Heirs should execute
instead EJS in accordance with my wishes. Definitely illegal because
contrary to A838. If that disposition is illegal, is the entire will illegal,
DLC says no. only the provision is void because it’s contrary to law but
Page 25 of 63
the will and other provisiosn contained therein shall be valid. Yun nga
lang, submit to court for probate. Eh sir bawal diba. E illegal nga! Later
on, you’ll learn that testator cannot impose illegal conditions for the
validity or probate of a will.
Only the due execution of the will is covered or the only issue that the
court must resolve in a probate. Only the due execution is the issue
that the court will resolve. Issues which have to do to vcalidity of
dispositions in the will are nto covered by the probate proceeding.
HOWEVER the court in Nuguid v Nuguid, created an exception to this
rule. Ano ba nangyari dun? Matandang dalaga. Age of retirement 65.
So wala pang matandang dalaga dito. Kasi kapag as this late a stage,
hindi na kayo makakapag-asawa. Take this from experience. May
dalawang magkapatid na babae. One of the sisters became wealthy as
businesswoman. Living with their mother na hindi matandang dalaga,
biyuda lang. the wealthy sister who becamewealthy with only one
provision. My younger sister is my sole and universal heir. Nothing was
mentioned about the mother. Siguro sabi ng daughter, eh matandan
na nanay ko, ano naman gagawin niya sa mana. Magkakaron lang ng
tax pag pinamana pa sa kapatid ko. Walang ni isang kusing na duling.
Everything given to younger sister. Long short, ate died and submitted
for probate. Opposed by mother. May DI kasi. Ano sabi niya? Will not
allowed probate. Because the provision contained in the will should be
allowed by preterition. I am a compulsory heir. Totally omitted it is
void. Since will is void, it’s a waste of time proving the will. Yougner
sister said: Mama, you may be correct but cannot raise that issue at
probate. It has nothing to do with due execution but validity of the
disposition contained in the will. Intrinsic validity nothing to do with
execution. Therefore, jan ka lang muna, wait for probate to finish. Ano
sabi SC? Bunso is correct. Issue has nothing to do wtihdue execution
but intrinsic validyt ergo not covered by probate. But since preterition
of mother is patent on the face of the will, why should we continue
waste our time effort and litgant’s money if after allowing this will,
provision will be allowed anyway. Even at probate, SC decided to take
cognizance and ruled on the intrinsic validity of the will. Basis: intrinsic
nullity of will is patent on its face.
Subsequent development however tells us that simply because nothing
left to compulsroy heir in the will gives rise to preterition. Hinid lang
naman will tinitingnan. Kalahati ng ratio sa Nuguid ay mali.
For our purposes, in case same issue crops up, SC has exception:
intrinsic nullity of will is patent on the face of the will. The court may
choose to declare the will intrinsically invalid.
Same issue in Nepomuceno v CA: Ron and Eva wedding. After 1 year,
hiwalay, hindi magkasundo and so Ron requiested eva to sign
document weherein they need to separate each other and allow to live
with own partner in life. The document pag dinocument, ang kaso niyo
ay disbarment in re cunanan. Although illegal, admissible as evidence
for defense as consent to defeat prosecution for concubinage and
adultery.
Because of that document niligawan ni Ron si Ani, pero di pwede
emagpakasal prior subsisting marriage. Common law adulterous
relationship. San sila titira? So using his salaries and wages Ron bought
a house and lot in a subdivision project in a nearby municipality. Mas
maganda house ni querida kesa sa asawang eva. Ganun naman talaga
usually ang kaso. Maybahay v Maycondo. Title in name of land
registered in name of Ron married to Eva. Pag namatay ako kawawa si
Ani, aapihin ni Eva. In order to assure Ani of a house to live in when
Ron dies, he wrote a will provision sa will: give house and lot as
inheritance of Ani para may matirhan sha. Ron died Ani submitted to
court for probate. The legal wife object. Sabi eva your honor invalid
ang will kasi disposition in favor of the mistress. Under law, any
disposition in consideration of adulterous relationship is void, since
there’s only one provision, the will is useless. Let’s not go on anymore
with probate proceeding. Ani’s lawyer: honor eva might be correct, but
complaint has nothing to do with due execution, rather it involves
intrinsic validity of disposition contained in the will that thas to wait
until admitted to probate. SC using Nuguid exception since only
disposition contained in wll is patently illegal, then it will be useless to
continue with probate proceeding and admit the will, it will become
useless anyway.
Maninang v CA Objection involving intrinsic validity, not patent in the
face of will therefore the argument to prevent probate was denied and
dismissed by the court. Allowed by probate proceeding to continue.
On what ground may a will be disallowed probate? Enumerated in
A839, it is exclusive, no other ground to disallow probate of a will. Yun
lang! Maliwanag yan!
After court has admitted will to probate, what is the effect if the court
admits a will to probate? Due execution of will is duly established. i.e.
natural it is a declaration that tetstator had testamentary capacity,
animus testandi, all the formalities for the making of a valid will have
been complied/substantially complied with, executed freely and
voluntarily.
ERGO, after the order has become final and executory, the
testamentary capacity can no longer be eatacked or reopened.
Voluntariness of execution may no longer be inquired into and noncompliance of reuirements of law can no longer be questioned. Due
execution of will is conclusively established.
BUT one of the heirs is in US when probate proceeding was filed and
heard by the court, when he came back from US, the order admitting
will to probate has also become final and executory. In possession of
documents that will prove beyond reasonable doubt that the testator
was at the time of execution was insane. Can he argue that he was
outside jurisdiction? No, it binds whole world, including gthose outside
jurisdiction of court at the time proceeding was undertaken.
Evne if the signature was discovered to be a forgery. Illustrate through
example. Ron isang anak na lalaki ng parents niya. Merong 2 older
sisters Ani and Eva. Bunsong lalaki, paborito ng parents at paborito
dagukan nung dalawa. When father was already a widower died, sabi
Ron, ay may will si Daddy. Eto yung will. Notarial will. The two trusting
Ron believed that the will was that of the father. No reason for them to
suspect that it was a forgery, the entire free portion given to Ron.
That’s ½ of estate. Magkano napunta ½ + 1/3 of ½. Favorite naman si
Ron, so okay lang yun. Mukha naming will ni Dad. Admitted to probate
by court and partition was carried out. Later Ron Garcia naging Born
Against. Praise the Lord. Charismatic movement so one day uso sharing
of experiences. Nagshare si Ron, 10 years after partition of property.
nagka-edad tas religious so isang araw sa congregation sa Araneta.
Umiyak. Yung will ng tatay ko, hindi namna niya wil yun, ako gumawa
nun, niloko ko sila. Iyak sha ng iyak. Huhuhu. Maraming chismoso sa
araneta, nagsumbong kay Eva at Ani. Yung will na submitted to
probate was a forgery. Nagalit tong dalawa.
1. On the basis of such confession, may the proceeding be
opened in order to invalidate the will? NO, kasi tapos na.
after order issue admitting the will to probate. It’s
conclusively established. Cannot reopen proceeding.
Page 26 of 63
2.
Idemanda natin ng criminal case, punyeta sha magbayad sha!
Pwede bay un? Hindi rin. In a forgery, there has to be forged
document. The body of the crime. Nasan yung document? Eh
sabi ng court authentic yun. Where is the forged document
now? Walang body of the crime. Criminal prosecution has to
be dismissed. Maliwanag yan!
Is there prescriptive period for probate of the will? No will was found
among his personal effects. 20 years later, it was hidden intentionally
by one of the hiers in order to prevent the distribution of estate in
accordance with its tenor, may that will be probated? Yes, there is no
express provision in the rules nor in the code. But in Guevarra v
Guevarra, SC held that probate of a will does not prescribe.
DISALLOWANCE OF WILLS
Whenever submitted to court for probate, it’s not ministerial for court
to admit it. Court may disallow if a ground exists under the law. Those
grounds are exclusive.
1.
2.
3.
Exception is substantial compliance
Insane is equivalent to unsound mind and un/soundness of
mind for making of will has a definition in the law on
succession
“Force” cc has not defined what force is. Nwhere in the CC is
the term force defined. What it defines is violence in A1335.
According to the writers of civil law, force and violence must
be considered the same. There must be violence as defined
in 1335.
“Intimidation” defined in law of oblicon not in succession.
Writers believe that there are the same definition.
“Undue and improerp pressure and influence” not in
succession by law of oblicon. Applicable to imporpert
pressure and influence as used in oblicon.
Reyes v Barreto-Datu: Hindi magkaanak si Ron and Eva. Sarthou is the
sperm donor kasi best friend ni Ron. After isang anak, di na magkaanak ulit. Eh naawa naman kalaro. Si Santos taon taon nangangak, tipid
sa Kotex hindi na dinatnan. Malas eh thirteen, ampunin mo na lang
13th child ko para may kalaro daughter mo. Hindi ginawang legal ang
adoption. Hindi naman talaga adopted. Ang ginawa ni Eva eh pinalaki
lang niya. Eva treated the two as her daughters, even her own niece as
her own daughter. Yun namnag dalawa, lumaki ng magkapatid treated
each other as sisters. Until mana happens.
Very close yung kanyang anak at pamangkin. Really very close. Thinking
that the real daughter would like it, sinabihian niya daughter one day, I
have a will in case something happens to me, then hati kayo equally sa
kahit anong iiwan ko. Contrary to her expectation, nagalit si daughter.
Ma bakit bibigay kalahati sa kanya, di ko naman tunay na kapatid yan.
Bakit kami pantay eh pinsan ko lang yan. Eh diba parang magkapatid
naman kayo? Eh hindi naman kayo magkpatid. Hindi ibang usapan nay
an. SO everyday niya ninag ang nanay niya, hindi na binati ang nanay.
She gave mommy cold treatment. Executed a second will changing
sharing of two in this new will, real daughter as sole universal heir and
legacy to niece as paconsuelo de bobo. Hindi sinabi sa niece yung
change so when Eva died, daughter submitted everything to court.
Niece but that revocation must be done against her will. There was
undue and improper pressure from you. Ninag mo yung nanay natin.
Undue and improper pressure an dinfluence attending the execution
of the second will? NO there was no undue and improper pressure.
Moderate and reasonable solicitation and entreaties addressed to the
tetstator. If the testator yielded intelligently and from a conviction of
duty. Daughter was may have been undue but not improper. She has
right to claim bigger inheritance. Pressure was neighter undue nor
improper. Eva yielda coz realized bigger obligation to daughter, not
niece. Bigger duty in favor of real daughter.
May there be partial disallowance of wills? No. A will is probated all or
nothing. There it cannot be allowed partially and disallowed partially.
Suppose the will was obtained though fraud committed on the
testator. Misrepresentation from some heirs induced testator to make
will requested by heirs, later on testator discovered the fraud but
despite having discovered the misrep or fraud, the testator decided
not to change his will, died without having revoked, will obtainined
initially obtained by fraud, is that a valid will? ISSUE: Has the testator
ratified, chose not to revoke it after disvoery of fraud? Caguiao with
whom I agree, will is void kasi walang voidable will that can be ratified.
Either void or valid, what is the effect of that ratification? According to
Jurado, it depends: no reason given, if it’s void as to form, will is void
and cannot be ratified. If void due to vitiated consent it will be
validated by subsequent ratification by ttestator citing Ozaeta v
Quarter. Failure to revoke or otherwise alter as soon as the testator
left house of the person who allegedly influence constituted silent
ratification of the contents of the will.
Comment ni Concepcion: If the will was executed under duress or
under undue improper pressure and influence, will was void. It can
only be validated by republication, reexecution or reference in another
will or codicil. Ratification is not a mode of republication under the CC.
Mas maganda yung rason ko diba?
Oppose: Sergio Osmena Jr. non compos mentis prodigal filed a
guardianship proceeding.
Concepcion v Osmena: Hermogenes Concepcion uncle ni Sir. National
scandal for the family.
Atty. Dona Chito Madrigal Collantes was also admitted to probate
during lifetime kaya di ko mawari ano nakain nitong si Jamby.
9 August 2010 – Happy birthday Rojiboi!!! :D
We’ll start with INSTITUTIONS
We are done with the formalities for execution of a valid will so we
shall now start with the validity of the written provisions of the will.
For there to be a will, an heir has to be instituted.
DEFINITION – A840: an act by virtue of which…
How? By designating him his name and surname under A843
May testator designate heir by merely describing the person e.g.
“faithful yaya/cook” “bestfriend” “favorite nephew”? Yes, such
description is allowed as a valid institution of heir provided that such a
description given in the will leaves no doubt as to the identity of the
person instituted.
Bear in mind that nobody becomes an heir unless he can show a
provision of a will or provision of law designating him as an heir. You
have to remember that. Nobody becomes an heir unless there is a
provision in a will OR a provision of law making him one. If ou cannot
point your finger to provisionof will/law making you an heir, you are
NOT and WILL NEVER BE an heir.
Suppose there are two persons who have the same name, how will the
testator make his designation to identify who among these people
with the same name was instuttied? In A843 the testator shall indicate
Page 27 of 63
some circumstances by which the instituted heir may be known. If the
testator fails to indicate those circumsntances who will inherit? Hindi
sinabi. Sample I institute my nephew Ramon ½ of my estate. When I
died,a dmitted to probate but turned out there are two nephews by
the name of Ramon. Who between the two will inherit when I did not
indicate a circumstances which will identify will inherit. May evidence
be introduced that one of the two Ramons were intended because this
Ramon was a godson of the testator? That Ramon was closer to the
testator during his lifetime? Under the old code, that was not allowed
but under new code, because of the change/amendment, introduction
of such evidence is now allowed.
E.g. 2 nephews by the name Ramon, one was living with testator at
time execution of will, that is allowable as evidence that the
Ramonliving with him was the Ramon referred to at the time of making
of will.
One of those answers in the same name was intended.
But suppose there is no evidence as to who was intended, what shall
we do? Let us divide the inheritance between the two of them? We
canot divide the inheritance to the two of them because that is
violation of the testtaor’s intention twice. Stole the presidency not
only once but twice.
1 In instituting one Ramon in the inheritance, testator intended the
inheritance to go to only one person. Entire inheritance just to one
Ramon. Nung hinati mo sila, maski sino nakakuha ng kalahati, pero
hindi kasi yung ang intention niya. Rather give everything to ramon
mentioned in the will.
2 ayaw niyang bigyan yung ibang Ramon. Yung intended Ramon get
only half and the other Ramon he didn’t want to give got a half. Double
whammy.
ERGO, Nobody gets the inheritance. Problem din ito. Pero this is a
penalty to the testator. Gagawa ka ng will, gandahan mo.
The institution, pag sinabi nating institution of heir. Designation of
anyone to receive something from the estate. Basta may binigyan kang
tao from the estate mortis causa, institution yun. If you are named, the
naming of somebody to participate or receive something is insituttion.
Dalawang klase yang institution.
instituted
heir
entire
estate/aliquot
part
Legacy
legatee
gift of specific
movable
property
Devise
devisee
gift of specific
immovable
property
Institution
(Proper)
Institution
In institution proper, the testator gives an heir the entire estate or an
aliquot part thereof.
Entire estate – all my properties. E.g. I give Pedro my entire estate
Aliquot - is a determinate (not determined) portion. We know exactly
how much the inheritance given but we don’t know what properties
are exactly included in the inheritance. E.g. I give pedro ½ of my estate
Legatee – gift of specific movable property e.g. I give pedro 1M; I leave
Ron my Mercedes Benz car; I give to Ani my house and lot in Greenhills
Devisee – k
Is there a difference between the two? Institution proper v Legacy &
Devise
In pretertiion: insituttion of heirs are annulled while legacy and devise
are respected insofar as…
That is how preterition is obtaining under the circumsntances.
Whenever the testator willmake his will, must he designate an heir for
all his properties? Must he dispose of his entire estate by naming or
instituting heirs therefor? No, under A841, the testator is not required
to dispose of his entire estate to instituted or designated heirs.
Those disposed of by will shall be respected insofar as not vilative of
provisions of code on legitimes and those which were not disposed of
in will shall be edistributed in accordance with provisions of code
dealing with intestacy.
In A845, every disposition in favor of an unknown person shall be void
unless by some even or circumstance, his identity is asserted.
Concrete e.g. testator was a frustrated lawyer, 10x bar and flunked
11x. Bar review in Ceb, 9 years. Ngayon hanggang 6 tries na lang. Kung
ako yun, 2x lang. after than barred from taking the bar. Since he’s a
frustrated lawyer, in his will, he made the following provisions, to the
bar topnotcher in the bar examination that’s held immediately after
my death, I give inheritance of P5M. Is the disposition valid? Sir, hindi
ba disposition in favor of an unknown person? It’s a wild guess for
everybody. When testator will die, who will take the bar, who will pass
and be topnotcher. Is the disposition valid? Yes, the disposition is valid.
We should differentiate between an unknown person from a person
who is not known to the testator. While 845 uses the term “unknown
person” the real meaning of that phrase as used in 845 is different. The
meaning of unknown person is a non-existent person. Not unknown
identity. Somebody who does not exist.
The testator was a bachelor. Hindi nag-asawa si Ron, lost his appetite
for Miss Eva and Ani and decided to remain bachelor forever pero
yumaman sha. So gumawa sha ngayon ng will. Wala shang pamangkin
na lalaki. Lahat ng sisters and brothers, ang anak ay babae. So gumawa
sha ngayon ng will. Nagbigay sha ng incentive sa kanyang will. To my
nephew who will be born within three years after my death is given
the inheritance of 10M. Is that a valid disposition? For the nephews
who were conceived and born after Ron’s death, they will not inherit.
But for those who were conceived BEFORE his death, they shall qualify
to inherit. The disposition is valid it is not a dispositioin in favor of
unknown person because the identity of person maybe known BUT if
the heir is not living at the time of the death f the testator, he is not
ualfied to inherit. To qualify he must be living at the time of the
testator’s death. Ergo, if born 2 years after the death of Ron, that
nephew will not inherit. Surely, that nephew was not alive at the time
Ron died. But if a sister was pregnant when Ron dided, then the child
in her womb shall qualify to inherit if born alive. Kasi the fetus is
considered a person for all purposes favorable to it.
May the testator designate a class of persons as his heir? Yes, however
there is a condition. The class must be definitely indicated.
May the corporation be an heir? Yes, A1026.
If the testator designted many heirs, how will they share in the
inheritance? If the testator indicated their shares in the will, then their
shares as indicated will be respected. If the testator however did not
indicate the share he designated, they shall inherit in equal shares.
That’s the first rule in institution.
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Sir mahina sa arithmetic yung testator. Kaya nga nag-law. Oi hindi lahat
ng naglolaw mahina sa arithmetic. Ako nga math teacher eh. The
testator made a will. Sabi niya, I give my entire estate to A,B and C. A
shall get ¼, B ¼ and C 1/3. Nagmarunong eh, kala niya magaling sha sa
arithmetic. Pagpalagay natin 600 M ang estate. 150, 150 and 200 for a
total of the 500. Kulang diba?
Hindi pwede ibigay sa legal heirs kasi nga entire estate kay ABC lang. so
yung 100 na tira, hahatiin natin sa tatlo pro rata.
Entire Estate to:
A
¼
150 150/500
180
B
¼
150 150/500
180
C
1/3
200 200/500
240
600
Pano kapag sobra naman?
Entire Estate to:
A
1/3
40
[40/140]20
B
1/3
40
[40/140]20
C
1/2
60
[60/140]20
140
120
If the estate is 120M.
Reduce the inheritance of heir pro rata. So minus…
But when the testator did not indicate the shares of the heirs, we aply
the first rule of institution: EQUALITY. They shall inherit in equal
shares.
Ano yung 2nd rule? SIMULTANEITY. The heirs are deemed instituted
simultaneously and not successively or alternately.
Last rule: INDIVIDUALITY. The heirs are deemed individuality instituted
and NOT collectively.
Illustrate second rule: SIMULTANEITY
The testator has two brothers: A and B. Testator made a will with the
following disposition: I give my entire estate to my brother A, to my
brother B and his children. Ilan anak ni brother b? dalawa. How many
heirs are entitled to inherit? Apat yan. Kasi the children of b were
instituted simultaneously with their father B, hindi sila alternatively
instituted.
Suppose the provision is worded like this: “I hereby institute my entire
estate, my brother A and the children of my brother B.” How do we
divide the estate? Divide the estate equally into three, because the
two children were deemed individually instituted, not as a group. If the
intention of the testator was to divide into two and limit the two
children to the share of their father, the testator must indicate so in
the twill in more express and categorical terms.
When the testator designates an heir in his will must the testator have
a reason? No, the law does not require the testator to have a reason in
designateing an heir in his will. Testamentary disposition is essentially
a gratuitous act, an act of liberality on the part of the testator. No need
for any other reason than liberality or generosity. While it is true that
no requirement of reason and the testator may institute somebody
without a reason, common sense tells us that testator will not make
such designation unless he has a reason. But suppose the reason is
false, the reason behind his institution was false, what is the effect of
such falsity on the disposition. Under A850, the statement of a false
cause is disregarded. That’s the GR: pag naglagay ng rason na hindi
pala totoo, the false reason shall be disregarded. Since the statement
of a false cause will not affect the validity of the disposition the heir so
designated will receive his inheritance but there is an exception. IE
when it appears from the will that the testator would not have made
such institution had he known the falsity of the cause. Let us illustrate
the application of that principle in a concrete example. Itong si Ron
gumawa ng will, in his will, he gave a nephew an inheritance of P5M
kasi he was informed that the nephew graduated summa cum laude in
his undergrad course here in UP. As a reward, summa cum laude pala
yang punyetang yan. How did he give it in the will? “To my outstanding
nephew, Jose, I give 5M.” Ron died, submitted to probate, nung
maghahatian na, yung mga P100K each nephews nagreklamo saying
bakit merong 5M ito? Nako hindi po totoong suma cum laude, hindi
nga nakagraduate on time, bolero lan gyang gagong yan. In order to
reduce the inheritance of the scalawag, may the other nephews go to
court and prove that his insituttion to a 5M was based on a false cause
and that uncle testator could not have made the institution had he
known the real facts? No they can’t go to court, why not? How can
they show that there was a false cuase when the will itself does not
state a reason. Under the law, the exception must appear oon the face
of the will. Kung wala nakalagay sa will kung ano ang rason, e di you
can’t go to court that there was a reason and the reason was false.
Hindi pwede magtestify ang abogado. False cause must appear in the
will.
Sir nakalagay sa will na yun ang rason, “For my nephews outstanding
performance in his undergraduate course in UP…” dahil nakalagay na
yung rason sa will, may the other nephews go to court, present the
witness and prove the falsity of the cause? No still. Yes it may be
shown to be a false cause but the statement of the false cause is
DISREGARDED. And so the heir will still inherit. Ano dapat patunayan?
Testator would not have made the institution had he known the falsity
of the cause.
Pwede ba witness ang abogado who drafted the will that no institution
if only to reward the nephew? NO the fact that the testator would not
have made the institution had he known must appear in the will. It
cannot be proven by any evidence outside the body of the will. Dapat
ganito nakalagay: “and to my nephew, for his outstanding performance
for graduating suma cum laude, AND ONLY FOR THAT REASON” yun
lang yung dahilan kung bakit sha pinamanahan.
TRANSMISSION OF RIGHTS TO INHERIT OF AN HEIR
Testamentary succession: kasi may will. Kapag walang will, hindi
pwede magkaroon ng testamentary succession. Basic yun.
The testator, binata si Ron, made a will and gave an inheritance to Eva,
the former girlfriend whom I did not cease to love. I give an inheritance
of P10M. kaya lang. naunang namatay si Eva. Survived by her two
daughters by 2 different fathers. Ron did not bother to change the will
even after Eva’s death. So namatay si Ron and admitted to probate,
kanino na ang mana? Makukuha ban g daughters? NO, Eva must be
alive at the time of the testator’s death. Since she died ahead, she
inherited nothing. Since she inherited nothing, she transmitted nothing
to her own heirs.
Baguhin natin sitwashon, naunang namatay si Ron kaya lang the will of
Ron was not discovered til after a year from the time he died. At the
time the will was discovered, eva was already in the hospital fighting
for her life. He died a year later. Pelikula yan eh. Nagsunuran sila, she
died of a broken heart. Talagang nakakamatay yan. I’m not kidding.
Mga lovebirds ganyan eh. There’s scientific evidence that somebody
Page 29 of 63
can die of broken heart. Who will get the 10M inheritance given by
Ron in his will. Matatanggap bay un ni Eva. Sir buhay si Eva when Ron
died. Yes, eva inherited because she was alive when Ron died. Di nga
lang nya natanggap. Iba yugn actual receipt of inheritance from
inheriting. Nakainherit na sha upon Ron’s death. Since she inherited
when she died, what she inherited from Ron although not yet
delivered to her became part of her own estate. That was included in
the estate inherited by her two daughters. Pwede ngayon habulin nung
dalawang anak yung inheritance ng nanay nila sa estate ni Ron. They
are simply enforcing the right of the mother in the estate of Ron so
that when mother’s right has been received, Eva will be able to inherit.
What may a testator dispose in his will?
Can he dispose his entire estate by will? It depends if the testator has
no compulsory heir, he can dispose his entire estate freely. Without
compulsory heir, the entire estate is free for disposition. Kanino pwede
ibigay, since no compulsory heir, Ron may leave it to anybody of his
choice including complete OR total stranger. Pwede charitable
organization, pwede sa tiyahin. Ang babaeng DI hindi Di ang tawag,
GRO. Pag lalaki DI, ang tawag dun, attorney. Parang nakakainsulto sa
profession natin no? Pati pulis attorney na rin. Pag abogado na kayo at
hinuli kayo sa traffic, saibhin Boss pasensha na abogado po ako. Tawag
jan professional courtesy. When I was a student in England, lawyers
are very unpopular even back. Sabi nga ni Shakespeare, kill all the
lawyers. Base relief na sandstone. Kailangan law related. Two farmers
quarreling over a cow, one by horns pulling it. The other farmer
holding by tail pulling it in the other direction. The two lawyers were
busy milking the cow. Nakangiti pa sila. Ganyan tayo ka-unpopular. I
don’t know why you are here. I was given second time around,
definitely not a lawyer.
But when a testator has compulsory heirs, the law reserves a certain
portion of the testator’s estate for the compulsory heirs. Reserved
porition is called “legitime”. Later on you will leaern who the
compulsory heirs are. The testator is allowed to dispose by will only
that part in excess of the legitimes, excess is called “free portion” every
disposition in excess of free portion is reduced, not necessarily
invalidated for having impaired the legitimes of the compulsory heirs.
The system of inheritance reservation is that observed in all civil law
jurisidcitons. There are some which do not observe the system of
legitimes or inheritance reservation in favor of certain heirs. Sa atin,
sinusunod pa natin yan. Changes were introduced by the NCC insofar
as illegitimate children are concerned and the surviving spouse. Under
the old cc, the surviving spouse does not inherit from the other spouse,
rather he will inherit only when a child survives but the inheritance is
limited to a usufruct. Hindi talaga sha nagmamana ng property. pero
kung walang anak, ibabalik ng pamilya ng lalaki ang babae sa dati
niyang pamilya. Hindi ka na namin kaano-ano. Pero kung may anak
may usufruct hanggat diba lumalaki yung bata, may usufruct. Under
the old code, illegitimate children were not heirs at all. Kaya nga ang
bastardo ay mayroong stigma. Nasa lower class ng society. Walang
mana. But the NCC recognized rights of illegitimate children to inherit.
Kasalanan naman ng mga parents ang pagiging bastardo nila. Not
penalize children for indiscretion committed by their parents.
Next meeting SUBSTITUTION OF HEIRS
Read: fideicommissary institution. PCIB v Escolin and Vda de Kilayko.
11 August 2010
SUBSTITUTION OF HEIRS
What is substitution? A857 appointment of another heir so that he
may enter into inheritance in default of the heir originally instituted.
E.g. I institute Ron as my sole heir, if in any case he cannot succeed, I
institute eva as my legal heir.
 vulgar or simple substitution. Gives testator absolute control how
estate disposed of after his death. Kasi baka mamaya, the heir
instituted is disqualified under the law or the ehri predeceases the
testator, therefore he is not qualified at the time testator dies.
If he does not provide a landing, to whom will the estate go?
Legal heirs by way of intestacy
to prevent the legal heirs from inheriting, allowed to appoint
a substitute. Galit sha sa legal heirs. Ayaw niya magmana the
legal heirs kaya ayaw niya mamatay ng intestate to prevent
dying intestate. Pwede maglagay ng substitute.
A858: four types of substitution recognized and regulated by the code.
Fideicomisary englicized of Spanish fideicomisaria
When will the substitute inherit? It depends on the nature of thes
substitution provided by testator in his will.
In the example I gave you, it’s simple/common substitution. Also
termed “vulgar”
BRIEF or COMPENDIOUS simple din yan, kaya lang dumami yung
parties.
E.g. designated heir appointed more than one substitute for the
instituted heir. Pwede ring reverse. Testator instituted 2 heirs and
appointed one substitute for the two instituted heirs. One is brief, the
other is compendius
RECIPROCAL substitutes of each other. Ron gets ½ of estate and Eva
the other half and appoint them substitutes of each other.
If you look at CC provisions, in reality there are only two substitutions:
simple and fidei.
Just variations yung two other of simple, they follow the same rules.
When will the substitute inherit? In case of simple substitution, in case
the heir instituted in the will… 1 predeceases, 2 repudiates, 3 becomes
incapacitated. Actually redundant yung three instances for substitute
to inherit
The 2 other reasons are also cases of INCAPACITY: death and
repudiates. Kaya lang nilagay yan, there may be some consequences
e.g. in repudiation, baka hindi naman available/obtaining in incapacity
in general or predeceased. That’s why 3rd ground is a catch-all
provision.
May the testator limit substitution to just one reason? Yes, in which
case, substitution will not take effect for the reasons not specified in
the will.
Suppose the will is silent as to what will give rise to substitution, in
what instance will substitution occur? 2nd Par of A859: kasama yung
tatlo.
Page 30 of 63
Suppose the testator made the ff provision in his will: “I institute Ron
to ½ of my estate. However if Ron dies within 5 years from my death,
Eva is appointed his substitute.” I died (baka sabihin niyo kayo lang
pinapatay ko), admitted to probate and Ron was alive when I died. But
for mysterious reasons, Ron died after my death. Will Eva inherit as a
substitute?
Baguhin ko yung tanong. Will Eva inherit? Yes, but not inherit as a
substitute. Why? Because A859 only says predecease, repudiation or
incapacity in the case of this parituclar testamentary disposition, the
supposed substitution will happen not when Ron predeceases, in this
case he did not predeceased. This will not happen in case of
repudiation, he did not repudiate. This will not happen in case of
incapacity. It will happen after my death. That is allowed not as a
sbustition but as a conditional tesatmentyar institution. Which we will
study much later. It’s a species of a conditional testamentary
institution. In reality, there were two simulatenous institutions in that
testamentary disposition. Ron’s insiuttion was subject to resolutory
condition while Eva is suspensive condition.
Going back to substitution, is the enumeration fof instances where
substitution will happen givne in A859 exclusive? In Kilayko, Justice
Romero (teacher ko yan sa PFR) sabi niya exclusive daw yan. Di niya
mashadong pinaliwanag. Kung titignan mo yung A859, sabi OR hindi
AND. In a way, she is correct because incapacity encompasses all
reasons. Kaya lang, because of “predeceased” the general principle we
can gather from A859 (and looking at the first first two, enumeration
then general term applies) general is limited sa nauna. All those two
will happen on or before the death of the testator. Therefore the
incapacity that will happen in 859 is generally interpreted to
INCAPACITY OCCURING ON OR BEFORE DEATH OF THE TESTATOR. NOT
INCLUDE INCAPACITY THAT WILL HAPPEN AFTER THE DEATH OF THE
TESTATOR.
Suppose testator instituted an heir and appointed three substitutes, is
that allowed? Yes under A860. Brief. 1 heir, 3 substitutes.
In case the instituted heir predeceases, what will the substitutes
receive, how will they share the inheritance. Tandaan ito.
1. Entitled to inherit what the heir originally instituted was
supposed to receive.
2. Substiuttion is secondary institution of hiers, therefore all
provisions applicable to insituttion is applicable to
substitution. For him to inherit, he must be alive and
qualified at the time of testator’s death. Suppose the
substitute died ahead of the testator, the answer is no.
3. Suppose three of them were alive, what will the three
substitutes inherit or how will they share the inheritance.
Apply first rule institution? EQUALITY so the three of them
will get equal shares.
4. May the testator provide for unequal sharing of the
substitutes? Yes. In which case, we also apply the
compuatiton that we discuseed. Kung exceed, there will be
pro rata reducation. Pag kinulang, pro rata increase.
Suppose one of the substitutes, die ahead fo the testator, tow hom
does his share go?
1. Depend on the provision of the will. The will is paramount,
unless the provisions are contrary to law, public policy,
morals. Ergo if the will has provided how the substitutes
inherit, die or inherit, the provision in the will shall prevail.
2.
3.
If the will is silent, apply rules on instiution. If accretion si
proper. If not proerp, it will become vacant and go to legal
heirs by way of intestacy.
Break in ko lang kayo sa principles.
OItherway around, 3 heirs, 1 substitute for the three heirs. One heir
dies ahead of the testator. Will the substitute inherit the share of one
of the three originally instituted? It depends on the wording of the will.
If it allows subsituttion to inherit the share of one of the insitutted
heirs, that shall be allowed. If it does not allow him to inherit the share
of each and eveyr heir insitutted, there should be accretion as for the
remaining heirs. All three heirs must die before bring in substitution.
I institute to ½ Ron, ¼ Ani, ¼ Eva. As substitute of the three, Chi is
hereby designated. Naunang namatay si Ron, predeceased the
testator, under mysterious circumstances. Will Chi inherit the share of
Ron? Yes she will. No intention on the part of the testator to give the
inheritance to no one but the htree. Designated to a specific portion.
I institute to my entire estate Ron, Eva and Ani such that Ron shall
share ½, Eva ¼ and Ani ¼. As substitute of these three, I designate Chi.
Will it go to Chi? There is accretion as to the three, all three must die.
TAKE NOTE OF THE INTENTION!
Sir, may the testator appoint substitutes in the alternative? “I institute
Ron to ½ of the estate, as his substitute I appoint Eva OR Chi.” Mahirap
iimplement ito. Kasi or, sino ang mag-iinherit.
What happens when disposition is so vague and not capable of being
implemented? Disregard the provisions.
How about substitutes in succession? “I institute Ron to my entire
estate, in case he is not entitled to inherit. I appoint Eva as substitute.
Chi is appointed as her substitute. In case Chi is not able, Ani is
appointed as her substitute. In case Ani is not capable, Eds.” Pwede
yan. Kita mo kung gano sha kagalit sa legal heirs niya. Katakot-takot na
substitution ang ginawa para hindi mapunta sa kanila ang yaman niya.
FIDEICOMMISARY SUBSTITUTION
This kind of substitution was suppressed in the draft submitted by
Code Commission to Congress. But suddenly they changed their mind.
Testator institutes first heir (who will enter inheritance BUT is obliged
to preserve the inheritance and transmit it to a second heir).
In reality, what will the first heir get? Hindi naman pala mananatili sa
kanya yung property. What it will enjoy is USUFRUCT of the
inheritance. How is this different from “legacy of a usufruct” in A869.
You know in property: Ownership of property, whether movable or
immovable, has two components.
1. Naked title – ang titulong nakahubad
2. Beneficial title – jus utendi of the property that is usufruct
Fixed assets – mga pag-aaring nakatirik
Liquid assets – mga pag-aaring tumutulo
Naked title is registered in the name of Ron therefore only he may
dispose the property because he is the owner of the naked title. Hindi
yung owner ang naked. Pero maraming gusto makakita sayong naked.
Beneficial may be given to another. Owner may divorce these two
components. Usually done when constituting a trust. Absolute owner
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gives naked title to trustee and the beneficial title to a beneficiary
(cestui que trust). Trustor or settlor may be the trustee himself or the
beneficiary. Usually agreement in a trust agreement with a bank.
Money investment. Legal title to funds is given to the trust dept of the
bank nd they will invest your money and you will get whatever fruits
were generated by your funds less trustee fee deductible. Kaya nga
trust, you trust that the trust dept of bank will make your money grow
but since your business proposition is pwedeng malugi yung money.
You cannot have recourse with the bank. It cannot guarantee. Bawal
yun.
In A869: A863 – it shall not go beyond 1 degree. Hindi ba the same din
yan under A863? Sino OPF dito? Wala? Bobo ang batch na ito?
One word: Substitution
Second heir will never get legal title to the property. Limited to his
usufruct, when the time comes for SH to give up his usufruct, the first
heir will have complete ownership. Never will the usufructurary get the
legal title to the property.
In A869
Legal title
First Heir
usufruct
Second
Heir
Testator
In a fideicomisary, FH is a substitute. There is apossibility that he will
get legal title over the property. When? In those instances provided for
in A867 in realtion to A86_. Kapag naging invalid yung 2nd heir,
mapuputna yung property to FH.
Sino ang substitute? The first heir. Hindi mashadong diniscuss ni
Tolentino yan. Hindi nga niya diniscuss yan eh. A863 was considered an
entailment of property. Naka-entail sa kanya til buhay yung
usufructuary.
When does naked title go o first heir?
A863: 1st heir and 2nd heir living at the time of death of testator. E.g.
2nd heir predeceases the testator. When the testator died, 1st heir alive
but the second heir already dead. What will the first heir get?
Usufruct? Kanino yung naked title? To the first heir because he is the
substitute. Kaya lang, care has to be taken, for there to be
fideicomissary, it must be expressly provided for in the will. It must be
there in the will.
Tinanong ko si Baviera nung student ako. Anak ni Baviera ang tawag
sakin. We shared many views, not so much with Balane. Kami lang
nagkakaintindihan. Litong-lito classmates ko.
How do we know that a particular provision is a legacy of usufructuary
OR fideicomisary? Matter of intention yan. Intention should be distilled
from the will or circumstances surrounding the execution of the will.
PCIB v Escolin
Himayin ang kaso, otherwise, you won’t be able to use the case later
on. Superficial ang pagkakaintindi niyo sa kaso. Won’t be able to make
use of them unless you encountered a deeper treatment.
Mag-asawa si Linnie Jane and Charles Newton, they settled in Baguio
kasi malamig dun. But during the lifetime of Linnie, sha yung business
woman between the two of them. Acquired many properties, may
parity amendment pa kasi dati. She died, survived by husband, no
children, descendants. Left behind a will: “I leave all my wordly
possession to my beloved husband. Free to do whatever he wants to
do with all those properties. He is at liberty. HOWEVER, if something
remains of those properties when he dies, the remainder shall go to
borhters and sisters.” Died ahead of husband, will admitted to probate,
delivered to husband.
Nung bata akong lawyer not so long ago, I handled a case of Hodges
spouses property in Pangasinan. Merong attorney’s fees. Impt sakin
yan. Charles was not very extravagant in his lifestyle. Hindi niya naubos
yung iniwan ni Linnie. Marami natira when Charles died much later.
May natirang kayamanan, may pag-aawayan. Turo ni Dean Magallona
sa amin. You should die broke. So nothing for your relatives to quarrel
about. Die broke.
Sino nag-aaway? Bro and sis of Linnie – claiming the residue. Vs. bro
and sis of Charles
How come, what are the arguments?
MRS: kami po magmamana kasi provided for in linnie’s will. Case of
vulgar substitution under provisions of the code.
MR: Hindi yan vulgar, fideicommisary yan. WON Vulgar happens take
at the time of testator’s death. Nakamana na si Charles eh!
Fideicommisary was void kasi nga walang nakalagay that Charles was
obliged to preserve and then transmit the property.
Justice Antonio Barredo, alumni of this College:
Escolin is relative of Mike Manotoc being first cousin of his Grandma
who is the sister of Mrs. Disini and yet he doesn’t know.
Not vulgar: heir instituted is not able to inherit. Charles (original heir)
was able to inherit.
Not fideicommisary: such sbustition must be intended by the testator.
If thetestator intended a fideicommisary but later on became null and
void then we apply A868. We cannot do so because Mrs. Hodges did
not intend to fideicommisary substitution because allowed husband to
spend. Since not allowed, don’t allowed 868 provision on
fideicommisary.
It is neither vulgar nor fideicommisary.
Sino magmamana? Bro and sis of Linnie Ann because Mrs. Was a valid
disposition. That disposition is a disposition subject to resolutory as
regards Charles, and suspensive on the part of borthers and sisters of
Mrs. Hodges.  tamang decision
Comes the case of Vda. De Kilayko.
Romero was my teacher. Nagpapalock ng pinto yan. Nalimutan niya
sabihin second day of class. I lived in Valenzuela. Late ako ng 5
minutes. Didn’t you know you’re not supposed to enter class when
you’re late. He sang in class. Founder ako ng Charivari. Three cofounders of Charivari.
Discuss why Kilayko is a wrong application case and PCIB is the right
case.
ORIGINAL WILL was written in Spanish so if you know Spanish, I
suggest you look at the original will but you’ll have to go to SC to get
the files. It was the will of Dona Maria Lizares of
16 August 2010
Vda. De Kilayko v Tengco
Page 32 of 63
Facts are almost similar to PCIB v Escolin. Will written in Spanish, there
was a legacy/device in favor of favorite niece who lived with her as
they were both spinsters. To the niece was given to the Hacienda in
Negros, colatilla, should niece die without issue, property goes to
testatrix’s borhters and sisters.
The first set of heirs, consisted of brothers and sisters of Dona Maria
Lizares.  it’s vulgar substitution
Second set, borthers and sisters of niece.  this is fideicommisary, but
since there’s no express provision in the will required for
fideicomissary substitution. Thgerefore, inheritance was already in her
estate.
Iba lang yung outcome nito, result applied by the ocurt.
SC: hindi vulgar yung nasa will kasi in substitution it will happen only in
case of predecease, repudiation and ncapacity at time of testator’s
dath. Those three are exclusive according to Flerida Ruth. Since not
vulgar, the supposed subsittituon happen after the death who has
already inherited, hinid vulgar so you just disregard the will. Tho whom
did the court award? To the bros and sis of the niece it was given.
Nothing in the will shows there was intention to create
fideicommisary. To be applicable and take effect, it mst be shown clear
and ___ intention.
Not fideicomisary and not vulgar, then disregard. What’s the basis? I
think the court committed mistake. It should have applied Escolin it’s a
valid disposition, subject to two simultaneous conditions. Institution of
niece was resolutory condition and brothers and sisters of Maria were
subject to suspensive condition.
Ang baba ng binigay saking grade niyan 1.5 hindi flat one.
RESTRICTIONS THAT TESTATOR SHOULD OBSERVE IN MAKING
FIDEICOMMISARY
aproepty within a group or proepty. Marami yan, reservas we shall
discuss later, reversiones. For a long period of time. According to CC
framers, one of the reforms introduced by CC is the abolition of CC
which entail preopty for a logn period of time. Kung yun ang
cornerstone, dapat degree of transfer and not relationship. Kung 10
kapatid yan, transfer transfer sila sa isa’t isa. Lahat sila tag-oone
degree. I doubt it’s the real intention of A863.
Because of this ruling in Palacios v Ramirez, there are collateral rules
we can gather.
a. May a corporation be a 2nd heir?
b. May a corporation be a 1st heir? Definitely there can be no
fideicommisary kasi it has no relatives. Eh sir pano yung sister
and parent corporation
2.
Cannot burden the legitime of compulsory heirs
3.
When will the first heir transmit the inheritance to the 2nd heir?
May testator provide that first heir transmit it after 10 years? Yes,
the will of testator may provide the time. Absence of time frame,
when must the property be transmitted to 2nd heir? It must be
transmitted upon the death. That’s the logical termination of his
right to the inheritance.
Before the death of the fiduciary, may he sell the property? There’s no
prohibition, he may sell the property but the transferee of the first heir
gets it subject ot the obligation to preserve and transmit property to
the second heir. Occur not upon the death of transferee but that of
fidiciuary. His right ends upon death of the transferor. Cannot get more
rights than transferor had in the first place. His right was subject to
resolutory condition.
1. Cannot go beyond one degree.
What do we mean by one degree? Pwede bang in succession yung
fideicommisary? I.e. many first heirs. E.g. I institute A to the
inheritance but he has the obligation to preserve and transmit
property to B. however B has obligaitona to preserve and transmit to
C. And then to D who will be ultimate owner of property –
fideicommissary substitution in several successions
How about the fideicommisary sell the property before the death of the
fiduciary? Back track if fiduciary alive at time of testator, in absolute
title by the first heir. First heir become substitute of the
fideicommisary.
What do we mean by one degree? This has been the subject of
controversy not only here but also where our code ahs originated.
Spain and then Code Napoleon (ruler of western Europe)
At time of testator’s death, fidu predeceased testator and only fidei
was alive. Who gets property? No provision in the code. It’s one of the
question I asked Barbie. Intention was to give absolute ownership of
the property to the fidei. Dinelay niya lang ng onti. Kung ganon pala
intention niya, maski magpredecease, dapat magpunta pa rin yan 2nd
heir. Bilib ako kay Barbie kasi alam niya tamang sagot.
One degree of TRANSFER or RELATIONSHIP: among Spanish writers,
interprerted to mean as one degree of transfer. Manresa and SR, one
degree of relationship. SC of Spain had already resolved this
controversy a logn time ago: a degree must mean one degree of
transfer.
In the Philippines, Filipino writers in civil law are also divided.
Tolentino, Paras and Padilla: relationship. Caguiao, JBL, Ricardo Puno,
Desiderio Jurado: one degree of transfer. Unlike SC Spain which
resolved this issue in favor of transfer, it ruled in Palacios v Ramirez,
ruled that it was relatinshiop citing Tolentino. Yung researcher hindi
magaling dapat SC of Spain ang binasa niya.
IN my opinion, don’t know if this was clearly expressed in Palacios v
Ramirez (kailangan may disclaimer otherwise baka maakusahan akong
plagiarism) based on report of Code commission, one degree should be
read to mean one degree of transfer. One fo the entail property within
a group or family. It’s one of the devises/institutions in OCC that entail
2nd heir dies ahead of fiduciary, who gets property? heirs of
fideicomisary, fidei was alive therefore he inherited the property.
Both fideicomissary and fiduciary predeceased? NO one inherits,
walang substitution.
Exactly at the same time Art 43.
Fiduciary was the substitute of the fideicomissary. First heir has the
chance of getting absolute title. As compared with legacy.
Another instance would be those under A867.
TESTAMENTARY INSTUTITIONS
1. Simple or pure 777 – no condition for inheritance to take
place, only event we should wait for is the death of the
testator. Ang impt lang ay mamatay. The moment he dies,
inheritance will follow as a matter of force. No conditions
attached to the right of the heir to receive his inheritance.
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2.
It’s enough that succession is OPENED by the death of the
testator.
Conditional 871 – subject to a condition (future and
uncertain condition the happening of which a juridical act is
made to depend).
3.
Can a past event be a condition? Yes, if we don’t have knowledge of it.
Perhaps that was possible during thte time where there’s no advance
means foc ommunication. Paglubog ng galleon sa Pacific.
When is a testamentary provision conditional? Validity or efficacy of a
provision depends upon the happening of a condition (future and
uncertain event)
Why is testator allowed to impose conditions on the right of an heir to
inherit. Reason given by writers: if testator can dispose of properties
by will, he is likewise free to impose conditions upon whom he wish to
give such property. testator cannot impose condition on the LEGITIME,
only on the FREE PORTION.
Why will testator impose condition on the right of an heir to inherit?
What will move a testator to impose such a codnition? Maybe testator
wants to oblige an instituted heir to perform something. For failure to
do so, forfeiture of right to inherit. OR maybe testator wants to
achieve a particular scenario when particular conditions set in.
Conditions of different kinds or type: implied/express, potestative –
fulfillment depend exclusively on will of heir/casual – chance or will of
a third person/mixed – fulfillment of condition depends on will of heir
and chance or heir and third person, suspensive – prevents the
effectivity of a disposition until happening of condition, resolutory –
right to inheritance is extinguished by happening of resolutory.
Nature: positive – required to give or do an act; negative – not do/give
anything
Propriety/legality: proper/improper
Take note that those conditions, to be valid, must be impoed in a will
itself or another will. Hind pwede in a document incorporated by
reference. Document short of a will. Ergo if those conditions were
imposed in document other than a will, but merely refered to through
incorporation, the condition will not take effect.
Deemed as not having been imposed: received free from any
condition.
There was doubt: in favor of absence of a condition. Why? A
tetstatmentary condition is essentially gratuitous act, in the absence of
clear provision that it’s subject to testatmentary act, we assume
there’s no burden.
Improper/inoperative conditions. There are 4 of them under the code.
a. 873: impossible, illegal or immoral
b. 872 in re 904 conditions imposed on the legitimes of
compulsory heirs
c. 874 not to contract marriage
d. 8Disposition captatoria.
a.
What is an impossible condition? Happening is contrary to the
laws of nature, it will never happen. E.g. Pagputi ng uwak.
Pagwapo ni Mr. Garcia, nanganak si Mr. Garcia. What is the
effect? Considered as not imposed. Institution shall be considered
as pure and simple.
Bakit disregarded, diba intention was really not to give property to the
heir. Tinakaw niya lang yung heir. Inasar lang niya. Paasa love mode.
Why do we disregard? The testator is penalized by law. Tarantado ka.
Gagawa ka lang ng disposition, nang-aasar ka pa! penalty incurred by
testator for imposing as a condition an impossible thing.
This is different from act inter vivos (will is mortis cause) A1123 makes
the obligation void if it’s made subject to impossible obligation. But
under 873, the condition is merely disregarded.
What is illegal condition? The actor’s performance violates the law.
E.g. give ½ of my estate if he will supply my youngest son shabu for life.
If that illegal condition is imposed, considered as not written an
imposed.
Where do we reckon illegality if it’s made subsequent? If the act was
illegal at the time it was imposed, but was already legal when testator
died, the heir must comply. Compliance has to be done after the
death. But those that happened before the death should be deemed
complied with. Tested after the death of the testator when heir is
supposed to comply with the condition.
What is immoral condition? Performance of the act in order to fulfill
the condition will violate morals of our country/nation, community.
E.g. Indecent Proposal. Pati sa pelikula illiterate kayo! Di ba si Demi
Moore, yung lalaki Ted Something played husband and wife architects
who were building their dream house in a beach front property but
lost their money. They gambled in Las Vegas pa nga eh. And then they
met this dashing Robert Redford millionaire. I give you 1M if you sleep
with me one night. Maligo ka na lang after!!! A species of prostitution
na ang nagbugaw eh yung asawa. Pero bakit nagbreak down their
marriage? Demi Moore admitted she enjoyed it.
Taken in the context of inheritance, pwede rin maging condition yun.
For an heir to receive his inheritance. E.g. of immoral condition written
about by experts in civil law? Condition for the heir to change his
religious affiliation (magMuslim ka for mana!), or a condition for the
heir to quit priesthood (Father Caluag no longer a Jesuit so one step
further, quit priesthood. Temping a man of God to commit a sin! Sin ba
yun? To leave his vocation). Pano kung I institute Ron Garcia to 1M
provided he becomes a lawyer. Yan ay immoral talaga. Increase the
number of those in the much maligned profession. WON parituclar
provision is immoral depend on the facts and cirucmsntances of the
case.
b. Absolute condition not to contract first or subsequent marriage.
Itong si Ron, nagbreak sila ni Eva. Magaganda pala ang mga Ivatan.
Matagal islang mag-un (MU). Then nagbreak. Nag-asawa si Eva. Sabi
niya sa pamangkin niya. I leave my nephew ½ of my estate provided he
does not marry an Ivatan. Ganon ka kinamumuhian ni Mr. Garcia.
Without having seeing the will, nag-asawa ang pamangkin, anak ni Eva.
Matatanggap ba niya yung inheritance? Depend on WON the condition
is a valid condition. Yes it’s prohibition but NOT absolute. For condition
to be improper, the prohibition to contract should be absolute. He
cannot marry anyone, anytime, any place. Since the prohibition
absolute (just particular group of people) the condition is not an
absolute prohibition. PERO baka ito naman ay contrary to morals. Bakit
mo pinagbabawalan na mag-asawa ng Ivatan. Wala pa namang nagraise ng issue na iyon? Why is the condition improper? Deemed not
written. Bakit yung absolute prohibition to contract marriage? May
sariling provision, hindi lang contrary to morals. violation of human
right to enjoy his fullest human existence. Para mong pinutulan yan…
ng kaligayahan.
Page 34 of 63
A subsequent marriage prohibition is also improper. Ron <3 Eva 
Annie. Annie <3 Migs. Migs die. Ron says: To my daughter Annie who’s
widow I leave ½ of my estate, provided she does not remarry at all. Eh
hindi makatiis si Annie na walang katabi sa gabi lalo na kung malamig.
Gusto niya may hinahug. She wants a warm body for a pillow so
pinakasalan niya si Mr. Pana. Will she receive the inheritance? Of
course, the issue that you should resolve is WON the condition
imposed by her father was a valid condition. If validly imposed, she
cannot receive inheritance. If the condition was improper, the
condition will be disregarded and she will be able to inherit. Valid ba or
improper yung condition? Yung tatay niya ang nag-impose eh! Hindi
naman biyenan diba so invalid.
2.
3.
Before death of testator
Heir died ahead of testator
Testator did not change his
Heir was survived by his own heirs
Who will get the inheritance? Will the heirs of the heir instituted
subject to suspensive condition? Raise your hands. NOT GET. Why?
Your answer was right for the wrong reason. Because since the heir
predeceased he never inherited. For an heir to inherit, he must be alive
at the time of the death of the testator. He did not inherit at all, since
that is the case, he acquired nothing to transmit to his own heirs.
B.
4.
5.
With a term
Modal 882-883
1.
2.
3.
4.
Let’s review your ObliCon.
I will not be able to meet you on Wednesday. Aaaaw. NAKO HA
SASAMPALIN KO KAYO. I have an arbitration hearing on Singapore.
23 August 2010
c. Conditions imposed on the legitime
The testator is not allowed to impose any condition on the leigtimes of
his compulsory heirs. When such a condition is imposed, the condition
is disregarded and the compulsory heirs shall receive his legitime free
from any conditions. Not only may the testator not impose a condition,
he may not also impose a substitution on the legitime.
N.B. The tesatator cannot charge a burden on the legitime. It cannot
impose any condition on the receipt or enjoyment by the compulsory
heir of his legitime.
d. Disposicion captatoria (A875)
Illustrate through an example: Sharon Cuneta executed will instituting
Kiko Pangilinan as an heir provided Kiko will institute KC as an heir in
his will. That is an example of a disposicion captatoria. The right of the
instituted heir to receive his inheritance will depend on the heir having
instituted or given by will to somebody specified by the testator.
When Sharon dies, Kiko did not make a will instituting KC, when he saw
the will he decided to make one so he made a will instituting KC as an
heir? May Kiko receive the inheritance provided in the will of Sharon, is
he entitled to receive what was given to him in the will of Sharon, he
had already executed a will requested by Sharon? He will not inherit
even if he complied. In the A875, not only is the condition disregarded,
(in an impossible condition, the disposition is disregarded), the very
disposition contained in Sharon’s will is void.
TRANSMISSION OF RIGHTS
In the case of a suspensive condition, what happens if the heir
predeceases the testator?
Let’s do it one by one:

1st scenario: the condition was fulfilled even before testator
died, however heir subject to suspensive condition died
ahead of the testator.
Let’s draw it so you can visualize better:
SUSPENSIVE CONDITION
A.
1. Condition was fulfilled
5.
Heir died ahead of testator
Condition was not yet fulfilled when testator died
The condition remained in his will
A year later, the condition was fulfilled but the heir
predeceased testator
Heir instituted subject ot condition has his own heir
Heir instituted still will not inherit because he predeceased the
testator.
C. Condition already fulfilled before testator’s death
When testator died, the heir insitituted subject to suspensive condition
was alive
Yes he will inherit.
D.
1.
2.
3.
4.
Heir alive upon testator’s death
Condition not yet fulfilled
Heir died when the condition was fulfilled
Heir has his own heirs
Who will inherit? Is the heir entitled to inherit at the time of testator’s
death? Not yet because condition not yet been fulfilled. Heir must wait
untl the condition has been fulfilled. When fulfilled, he will become
entitled to rreceive his inheritance. This is the essence of suspensive
condition, right of heir to inherit is made to depend on the happening
of an event. It’s only when that event happens that the heir will be
entitled to receive the inheritance.
Suppose the heir died before the condition has been fulfilled? It’s true
that he was alive when T died, however, the heir died before the
condition happened. He was suriveved by his own heirs, when the
condition happened a year after death of hier, who is entitled to
receive the inheritance? They are not entitle, under A1034 fo ran heir
to be able to inherit, he must not only be alive at the time of
testtator’s death but also at the time of happening of the condition.
That’s when the right to inherit gels. If he was already dead at the time
of happening of event, he no longer qualified to inherit. Since he is not
entitled to inherit, he did not transmit anything to his own heirs.
Before happening of the condition, is he entitled to receive possession
of his inheritance and enjoy it? NO. that condition will be meaningless
if otherwise.
Kanino mapupunta property before inheritance? Under A880, it will go
to an administrator.
When it becomes a certainty that condition will no longer happen,
what will the administrator do? Turn over the property back to the
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estate. Hindi na makakainherit si suspensive heir. I return it to estate
and therefore it goes to the legal heirs of the testator.
RESOLUTORY CONDITION
Right terminates upon the happening of the condition. E.g. “I institute
Ron to ½ of my estate but if Ron will not have a son, his right to the
inheritance shall terminate.” Puro babae anak ni Ron, pambayad sa
mga utang niya. Dun sha babawiin. Pambayad utang sa ibang babae.
Nung araw kasi chattels ang babae. Oh ayan pare, bayad ko sayo, isang
anak. That was during the Roman time when women did not have
political rights. They were considered chattels. At least hindi naman
large cattle, chattel.
The heir instituted subject to resolutory condition should be alive at
the time of testator’s death. If the ehir was alive, he inherits, however
in his hands, the inheritance will terminate upon the happening of a
resolutory condition. If the heir predeceased the testator, he will not
inherit at all, therefore, he will not receive inheritance when testator
dies. His heirs will not be able to get anyting, there being no
transmission of rights. He never became an heir therefore he acquired
nothing to transmit to his own hiers.
When the heir was alive when testator died, the heir will enter his
inheritance but wil keep it subject to happening of resolutory
condition. When that happens, he loses his rights to inheritance. To
whom does it go? To a person specified in the will, if there is a
substitute or designation. Absent that stipulation, it will go back to the
estate of the testator in which case, his legal heirs will inherit the
inheritance.
Suppose the heir who inherited from testator dies before happening of
resolutory condition, who gets inheritance? Heirs of resolutory heir will
receive the inheritance from the resolutory heir. But they will receive it
subject to the same resolutory condition. Only property that resolutory
heir had over inheritance, that’s what he trasnmitte dot his on heirs. If
it was subject to resol ocnditon, that’s what he transmits to his own
heirs too.
When resolutory condition happens, heirs of resolutory heirs, they will
have to give up the property.
He can sell whatever his vested right is in the property. The property
he will sell is subject to same codntion. Buyer gets same property
subject to resolutory condition. Can’t give more than what you don’t
have. No absolute ownership, you can’t give or sell absolute
ownership.
Suppose the happening of the resolutory condtion is certain not to
happen anymore: What happens to the inheritance? Resolutory heirs
OR his heirs will keep inheritance forever, their ownership becomes
absolute. Usually, when an inheritance is subject to resolutory
condition, the TCT is annotated with the resolutory nature of the
inheritance. Para kanino man mabenta yun or masangla, alam nung
makakatanggap na yun lang yung extent of interest of transferor.
When it becomes certain it will not happen, annotation may be lifted
upon court petition that it will not happen anymore.
CONDITION v TERM
“Term” – future event the happening of which is certain. Alam nating
mangyayari yan but we don’t know when exactly it will happen. E.g.
death of a person, unless he’s a vampire. He will die for sure, when
exactly this son of a gun will die, we do not know.
It may be suspensive or resolutory
SUSPENSIVE TERM – right is suspended until arrival of the term. Pag
condition, happening. Pag term, arrival. You should be precise when
answering questions in the bar. It shows breeding. Ang sama ng mga
SC decisions, parang gusto mong iedit to correct.
Testator instituted heir subject to suspensive term. Heir died ahead of
testator but survived by his own heirs. When the testator dies and the
will was admitted to probate, who will inherit? Definitely heir cannot
inherit because predeceased the testator. How about his own heirs,
will they inherit? NO because the heir instituted subject to a
suspensive term never inherited because predeceased, did not acquire
anyting from testator to transmit to his own heirs.
New scenario: when T died, the heir instituted subject to a suspensive
term was alive but the term has not yet arrived. Before the arrival of
the term, the heir died. But he was survived by his own heirs. Will heirs
of the heir instituted subject to a term inherit? YES they will be able to
inherit under A878. This is the difference between institution subject
to suspensive term and subject to suspensive condtion. It’s enough
that he’s alive at the time of testator’s death. His inheritance vest in
him at the time of testator’s death. arrival of the term is a mere delay
in the delivery of his inheritance. Ownership over the inheritance is
vested on the hier upon death of testator.
Before arrival of the term, who will get the inheritance? Not the heir
because that violates the express instruction of the testator. There is a
conflict between 880 and 885. 885 applies specifically to a disposition
subject to a term, while 880 applicable to both disposition subject to a
condition/term. Ano masusunod sa kanila?
There is a period for retribution. Tuwang tuwa ako pag di kayo
nagbabasa.
JBL Reyes: “There used to be no conflict between the two because 880
in the old civil code referred only to a condition institution, did not
cover institution subject ot a term. But when it was being deliberated
some smart aleck stood up and proposed an amendment. Akala niya
kasi magaling sha.” Pag-isahin na lang natin ang term at condition.
Dahil hindi sha civilista, hindi niya alam ang 885. They should have
suppressed 885 from the draft of 885. End result is a conflict between
880 and 885.
What is the solution proposed by JBL? 885 should control when it
comes to a term because it specifally applies to disposition subject to a
term whereas 880 applies to general. So far, interpretation of 2 articles
has not figured in a case that reached in the SC. Bihira ang mga
settlement cases. 5 pa lang ang settlement case na nahandle ko,
celebrity politician. Walang lumabas sa diyaryo.
Bear in mind the comments of JBL Reyes? With whom Sen. Tolentino
concurs.
Tolentino has the same opinion as JBL: Administration isnot proper in
case of disposition made subject to a term.
Under 885 when a disposition is made subject ot a suspensive term,
the inheritance will go to the legal heirs. Pano kung sirain ng legal heirs
or hindi ibalik? Walang problema kung immovable real estate, hinid
naman pwede sirain yun. Masisira ang improvement but real estate
remains there for the heir subject to a term to take over. Pano kung
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nasira yung improvements or kung movable yun? What will be the
remedy of the heir instituted subject to a term? Ano ang kanyang
remedy? The law has seen that scenario and so the court has imposed
a condition in order for the legal heirs of testator to enter the
inheritance. They will post a bond called Caucion Muciana.
Baka itanong sa inyo sa bar: What are those instances when caucion
muciana is required? This is one. There are two more. Kayo na bahala
maghanpa nun.
RESOLUTORY - If inheritance is subject to resolutory term, our
discussion on resolution condition will apply.
When the term arrives, the heir will lose inheritance and give her up in
favor of party indicated in will or in the absence of such indication.
Back to estate of decedent.
TESTAMENTARY DISPOSITION WITH A MODE
Maraming hindi nakakaintindi dito.
Mode – obligation imposed by the testator for the heir to perform. A
duty, an act required of the heir to fulfill or perform. A charge imposed
on the heir. E.g. “I institute Eva to ½ of my estate however, Eva should
pay my widow a monthly allowance of P100,000 for as long as my
widow lives.”
Suppose Eva fails or refuses to pay the P100,000 monthly allowance,
what happens? If she loses the inheritance for heir failure to do so, it
must be a resolutory condition. It’s not a mode. Payment must be the
condition that when she fails to perform codntioin, she loses the
inheritance.
What makes it a mode? Pag hindi sumunod, at nawala inheritance,
resolutory condition yun not mode. When the penalty for nonperformance of the obligation is not forfeiture of the inheritance. Pag
walang ganung nakalagay na maliwanag sa will an ang penalty ay
forfeiture, dun lang nagiging mode yun. How do we enforce the
obligation of Eva to pay P100K monthly allowance to my widow, pano
natin sha pipilitin? SPECIFIC PERFORMANCE that’s the remedy
available to the heir. She goes to court and impose specific
performance. Attach all her properties in order for the obligation to
comply with. Unless she repudiates the inheritance, wala shang liability
at walang charge. Inheritance is the one that answers for the
performance of the mode imposed on the inheritance. So e.g. yung
kalahati kayamanan consisted of hacienda in Nueva Ecija earning
income from agri production, kumikita P500,000/yr. ayaw bayad Eva, I
can sue for specific performance and ask to garnish the income for
delivery to the widow. That’s the difference between mode and
resolutory condition.
There’s a case decided by CJ Davide. I won’t be surprised, he was not a
civilist. Although graduate natin yan, batch 1969. If the obligation is
with a mode, caucion muciana. Isa na lang ang hinahanap niyo.
It’s in 886. Reservation for compulsory heirs. Why does the law provide
for reservation? To protect the compulsory heirs from the presumed
unjust ire or weakness or thoughtlessness or irrationality of their
parents/relatives which are the testator. Pag nagagalit magulang hindi
nakakapag-isip yan. Ttatanggalan kita mana! Or nabubulagan ang
magulang like a widow. Very early in her life. For lack of entertainment,
embark in an entertainment program, ballroom dancing. Best forms of
physical exercise. Nainlove kay DI. Pag na-inlove tao, nasisira ulo niyan.
Becomes irrational. Pag hindi ka naging irrational, hindi ka inlove. In
lust ka lang. kailangan maging irrational ka. Tandaan niyo huling kabit
na kayo. Kailangan niyo ng asawa. Ha Eva? Baka pamigay lahat ng
properties sa DI because of undue and improper pressure and
influence.
Walang tutang nauulol. Matatanda lang nauulol. Mad dog. Nakakakita
ka nab a ng mad puppy. Old dogs, old bitches.
Membersof the family who should be protected.
Who are the compulsory heirs?
1. Legitimate ascendants
2. Illegitimate parents
3. Legitimate chidlren and descendants
4. Illegitimate children
5. Surviving spouse
Lima lang yan under the CC. Under the OCC there were only 2
(legitimate ascendants and descendants) lahat ng illegitimate were not
recognized as heirs. We gave premium to legitimate relationships.
Kung pareho lang ng effects, e di wag na lang magpakasal. Gradation of
rights. Wife used to have no right under the old code except usufruct if
there’s child. If no child, balik ka na sa nanay mo.
One writer: in reality there are no illegitimate children, just illegitimate
parents.
Not all of them will inherit at the same time. There are heirs to exclude
other compulsory heirs. Excluded secondary heirs. Primary compulsory
heirs.
Sino ang primary compulsory? Yung hindi pwede exclude:
1. unang-una ang surviving spouse. Dati dati wala shang right to
inherit, ngyon, binigyan na nga ng right, hindi pa sha
naeexclude. Para shang bawang kapag nagluluto kayo.
2. Legiitmate children and descendants
3. Ganon din illegitimate children
All the others: are secondary heirs because excluded by certain by
primary compulsory heirs
Caguiao in his book raised this question: suppose heir instituted
subject to a mode, refused to comply or perform the mode? Hindi niya
sinagot ang tanong niya. The remedy is not to return but to enforce by
specific performance even if it will require attachment of the property
inherited so be it. Kung kailangan sale at a public auction for the mode
to be complied with.
LEGITIMATE ASCENDANTS
Compulsory heirs when only them survive. E.g. Ron decided to remain
a bachelor dahil naborken heart kay Eva. Nag-negosyo, yumaman.
Mysterious reasons. AIDS daw sabi ni Ani. Parents lang natira and
borthers and sisters. Who will inherit Mr. Garcia’s wealth? Nearest
relatives are parents and brothers and sisters. Sino mag-iinherit?
Legitimate ascendants are compulsory heirs. How about siblings?
When there exist compulsory heirs, exclude all relatives. Pag merong
compulsory heir, excluded lahat sila.
XIV. LEGITIME
Compulsory heirs din sina Lolo at Lola: direct ascending line ad
infinitum hanggang sayong ancestors. Collateral line ang tawag kila
Page 37 of 63
uncle. Ginarison yung bahay ng ninuno ko kaya nung liberation,
binomba. Nasira lahat ng family memorabilia.
Pagka gastado na, hindi na nilalagay ditto. Sabay itsa ng marker.
Suppose this happened instead:
A
A-B
|
C
|
G
D-E
|
F
H-I
|
J
-
|
N
K-L
|
M
|
O+
Sino papatayin natin jan? Si O. Lagay natin sha sa nitso hahahhaha
1. Compulsory heirs exclude non-compulsory.
2. Those compulsory heirs in the direct line, exclude the
collateral (though wala naman compulsory na collateral).
3. Those in the same line the nearer excludes the more remote.
If they all survive, GN will compulsory heirs of O to the exclusion of the
grandparents and great grant.
What if G is also dead? Definitely N will inherit to the exclusion of JM
HI KL.
Can CF take G’s share? We don’t allow that in the direct ascending line.
Hindi pwedeng bumaba sina CF kay G. Representation is not allowed.
THereofre, only N will inherit. Nearer degree, everbody will be
included.
N is in the first dgree, she will exclude all those in the other degrees.
N is already dead din. CFJN will inherit nearest legitimate surviving
ascendants. How? Divide equally portion reserved for legitimate
ascendants? Magkano ba yun? If alone, ½ of the estate. What happens
to the other half, free portion. Decedent may dispose by will but if he
dies without a will, half porition will be disposed of by intestacy.
Suppose patay na rin si C? Who are compulsory heirs of O? 3rd degree
are excluded by the 2nd degree. What’s their share? In the ascending
line, the legitime is divided equally between paternal and maternal
lines. ½ of legitime goes to F for the paternal line and then ½ to J and
M in the maternal line, to be divided them equally. Malaki ang mana ni
F kasi wala shang kahati.
1 September 2010
When ascendants survive alone, only then are they compulsory heirs
entitled to legitime of ½ of the estate of the decedent.
What happens to the other half of the estate? Free portion. If the
testator made some legacies or devises. If those exceed the free
porition, they are inofficious.
Alsoo chargeable against free protion of estate are donation inter vivos
made during the lifetime. If exceed, they are inofficious and have to be
reduced.
½ legitime shall be divded equally between maternal and paternal
lines. Among the ascendants, the nearer excludes the more remote.
Suppose ascendants are survive with brothers and sisters of the
decedent, are bros and sis compulsory heirs? They’re not under the
law.
Who should inherit as compulsory? only ascendant. Eh yung
greatgrandpa natira. Decedent survived by greatgrandpa and full blood
brother.
|
C
B
E
G ---------------- H
|
.
I
J
|
D
F
-
K
Brothers are in the collateral line while greatgrandparents are in the
collateral line. They are not compulsory heirs. Legal lang. Not
compulsory.
1. Rule when compulsory heirs concur with legal heirs not CH,
the LH are excluded.
2. Direct line excludes the collateral.
3. The other half is free portion.
4. Computation of legitime: I didn’t catch 
Legitimate ascendants. Kalian sila legitimate ascendants. When the
ascendants are validly married to each other.
Don’t forget what you learned in PFR, man and woman living together
as husband and wife for a long time, holding themselves out as h&w
are PRESUMED to be lawfully married to each other (Perido v Perido)
That presumption is merely rebuttable. Interested parties may prove
that the marriage was invalid. Kung invalid marriage, hindi legitimate si
descendant. May isang kaso na decided by SC which is wrong, this is
how poor the general quality of SC have become. New rule of
procedure promulgated by SC governing declaration of nullity,
annulment and legal separation. Sabi nitong justice, under new rules,
only the spouses of the void marriage may bring action to make it null
and void. when one party died, you cannot attack.
Void marriage may be attacked directly (filed only by parties to the
marriage, not by a non-party; petition to declare marriage null and
void) and collaterally (in any action, if necessary for the disposition of
the case in that collateral case e.g. namatay mag-asawa nobody
challenged the validity. Yung anak pag naging illegitimate, lilit kanyang
mana. Can party interested in having him declared illegitimate? yes
that may be done and it is a collateral attack). SO DAPAT KASAL
Sir yung kasal po ni Kris Aquino, valid ba yun? Practice of many
politicians in the province. Mayor Belmonte’s office. Wala yung mayor
so kinasal sila ni Pastor pero pumirma sa contract si Belmonte. Invalid
kay Sir, Pastor to have an authroity, he must have provided at least
one of the contracting parties is a member of the church, religion or
sect of the solemnizing officer. What is the effect if none of the parties
was a member, is the non-compliance a mere irregularity or is it
absence of authority? Does not affect validity of the marriage, only a
criminal prosecution for solemnizing an officer, if non-compliance with
proviso is absence of authority, then the marriage is void because
formal requisite was absence. Mere irregularity or absence of
authority? Maganda sana maging amicus tayo jan so we can educate
the court.
Kris and James believed in good faith? Belief of good faith does not
include mistake of law, only mistake of fact. Authority of the rabbi
priest etc is subject to a condition that one of the contracting parties is
a member. It’s a matter of law.
Page 38 of 63
Tolentino says: matters of fact are included in A35 No. 2 eh di our
people will might as well marry before barangay captain, police chief,
barangay tanod, school principal.
Navarro v Domagtoy: judge was only disciplined but they may
solemnize marriage anywhere in the country.
Gusto niya ngang mamatay na tatay niya para makamana na sha. Even
if Ron will attempt to save his dad, the father will decline.
The legitimate children exclude the legitimate ascendants from the
inheritance fo the decedent.
ADOPTING PARENT
Is he a compulsory heir? There are two schools of thought.
1. Judge Sempio Diy and many other teachers who believed her
Went very far to claim that in adoption the adopted child is totally
separated from his natural family. All connections of the child are
severed. Natatawa na lang ako. Parang hindi sila nag-iisip. Of course
not! If that’s the case, e di pwede na niya pakasalan kapatid niya dun
sa natural parents. Are you ready to allow that? Only the parental
authority of thenatural parent is severed. Butthey remain as legitimate
parents of the adopted child.
Under A342 of NCC, it was provided there that adopting parents are
NOT legal heirs of the adopted child. Why? Because there is a
temptation on the part of the adopting parent to adopt a wealthy child
to be his heir. E.g. namatay yung parents sa Luneta Hostage. To
remove temptation and that adoption is solely motivated by desire of
parents to make him their own, purely familial motives, the NCC did
not make adoptive parents as compulsory heirs, not even legal heirs.
But this was expressly repeal,
984 CC: hindi heir ang adoptive parents. Companion provision of 342.
Hindi narepeal expressly ang 984, only 342. So what is the standing of
the 984? Yes, it is also repealed, otherwise, there’ll be inconsistency
with the provisions of FC. Sabi naman ng repealing clause ng FC, what
is his status now? I wrote an article analyzing this case with the IBP
journal. Compulsory heir ang adopting parent if he does not survive or
concur with natural or legal parents. Article was published March 2009
about domestic adoption and its effects. One thing for sure, the
adopting parents are legal heirs, under A190 of the FC instances where
adopting parent will inherit. Since they inherit, they are therefore legal
heirs but the FC does not make them compulsory heirs because they
don’t have legitime and it’s not clear that they are CH.
But supposed legitimate ascendants concur with illegitimate children?
Are illegitimate children compulsory heirs? YES, they are. But they
were not under the OCC. Yung mga illegitimate, they were considered
strangers to the family. They have nothing against the legitimate
family. They were not entitled to any inheritance, not even from the
illegitimate father. Bastardo! Kaya noon may stigma yung pagiging
bastardo. Yung tiyahin ko turned down a suitor who was rich but
bastardo. Naging governor ng province later on. Ano tiyang nagsisisi ka
na ba?
But I made an analysis that the intention it would seem is to make
adopting parents LH but only when they don’t concur or survive with
the natural parents of the adopting child.
Art. 39, PD 603:
Don’t forget however, for an illegit child to inherit, he must be
recognized by putative parent either voluntarily or involuntarily.
172 FC in relation to 175: only three forms: [1] record of birth [2] public
document of recognition/affidavit of acknowledgement [3] private
handwritten document signed by putative parent
LEGITIMATE ASCENDANTS
Suppose they concur with legitimate children. Legitimate ascendants
are excluded.
What is the legitime of the Legitimate children = ½ of estate equally
divided among the children
Why exclude from inheritance the parents? Bakit ganun ang batas?
According to framers of OCC (which came from Spain which came from
France Napoleon Code) Love of person is like flow of water in river, it
does not flow up, only down to the sea. It may flow collaterally, but
not flow up. Yung river nila ay wala sa coast. Madrid is landlocked, so
they think, the river really does not flow up. But here in Manila, it does
flow up kapag high tide.
That is the normal behavior of a normal person. He loves more his
descendants than ascendants. Kung may puzzle, si Ron sumakay sa
Bangka kasama ang anak at tatay. Si Ron lang marunong lumangoy,
boat capsized but Ron can only save one of the two. Who do you think
Ron will save? Sociologists say father will save his son, not his father.
Nung naging famous na ang bastardo, Sharon Cuneta. Juan Ponce
Enrile? Son of Don Alfonso Ponce Enrile, kasama sa Perkins Law Office.
Treasurer of Province of Cagayan. Armada siguion reyna. Naging lonely
si Don Alfonso sa Tuguegarao. Laundry woman became mother of Juan
Ponce Enrile. Furganan. Johnny Ponce Enrile looked for his dad’s law
office. Lawyer like you. I will send you to the best school on two
conditions. Best school? UP Law!!! Live with me and change your
surname. Galit tuloy si Armida. Bakit pinapatira ditto ang bastardong
yan. Dahan dahan kayo magsalita, mga bastardo rin kayo! Hindi kasal si
Dona Purita at Don Alfonso.
Sikat na bastardo ngayon.
Illegitimate children under new law are compulsory heirs.
If concur with legitimate ascendants, the legit asc do not exclude illegit
children. They will concur and inherit as compulsory heirs.
Legit ascendants = ½ of estate
Illegit children = ¼ of the estate divided among them equally
Remaining ¼ = free porition
Recognition will not be effective pag hindi pumirma (?). Child is
voluntarily recognized against illegit parent.
e.g. wala lahat nay un. Pag pumirma ako jan, confession of
philandering yan. Hindi rin sha gumawa ng affidavit or ng private
handwritten document. Pero yugn bata kinilala informally. Pinakilala sa
mga kaibigang putik, hawig ko talaga oh. Sha nagpaaral, tuition, report
card, pirma as parent. Those documents, photographs or public
knowledge that he was illegitimate child, they are not recognition in
itself, only as grounds for recognition.
If he dies without recognition, illegit child could not inherit. Can file
action to compel recognition only during lifetime, after that, action is
barred.
What about DNA? Yung ibang piyesa, hindi nadodonate yan.
Nakadonate ang blood, retina, liver at kidney? Pwede ba patest DNA
ng tatay tas imatch sa DNA test results? 99.9999999% makakainherit
ba illegit child? No, because it’s not a form of voluntary recognition. It’s
Page 39 of 63
just evidentiary to compel recognition. But the action to compel
recognition is already barred by the death of the putative parent.
Illegit children will divide legitime of ¼ among themselves equally,
maski ibaiba ang nanay or tatay nila. As far as common parent is
concerned, all of them are illegit children. pare-parehong anak sa labas
kaya pareho lang ng inheritance rights.
Legit asc concur with adopted child
Suppose the legit ascendant is survived by the adopted child of the
decedent who are compulsory heirs, the adopted child will exclude leg
ascendant. Because the former has all the rights of a legit child. This
includes excluding the right to inheritance of parents of adoptive
parents.
NB for a child to be considered adopted, the adoption must have been
decreed by an adoption court. Decree of adoption. Kung ipinalista
laman yung bata in the name of the parents to whom he was given,
that birth cert is not proof of his or her filiation. Because that
document is a falsified document. Crime is called: Simulation of birth.
Domestic adoption law: simulation is defined as tampering of birth
cert. napakahina sa choice of words. Simulation ≠ tampering.
Otherwise, falsification. Wlaa kang tinamper dito eh. Falsification is
absorbed by simulation as necessary act for the commission of the
latter.
Legit asc concur with surviving spouse
Who are CH? When the spouse is survived by legit issue, the surviving
spouse only entitled to usufruct but not real inheritance. Under NCC,
SS is given real inheritance. BUT SS does not exclude the legit
ascendants.
Yung illegit children does not exclude legit asc because we have to give
premium to legit relationships. Di pwedeng walang pinagkaiba. There
must be a gradation of rights, otherwise, no motivation to legalize
union with partners in life. No value as social institution ang marriage.
Make legit rel between partners in life. Kung walang effect, bakit pa?
SS does not exclude. Why not? Because blood is thicker than water.
Kaano-ano mo ba yang asawa mo? Pero nagiintrega ka ng sweldo,
sinusunod mo lahat. Yes mam yes mam pero di mo kaanoano yan.
Blood is thicker than water. Kaya hindi maexlcude ni SS si Leg Asc.
Pag nag-aaway yung mga kilala kong mag-asawa, yugn parents ang
topic. Lagging nagbibigay ng sustento sa parents si Ron. Pambili ko ng
shoes, nasa parents mo! Dahan dahan ka. Makakakuha ako sampung
kapalit mo, pero walang kapalit ang parents ko. Di mo pwedeng palitan
ang parents mo pero pwede mong palitan ang asawa mo.
They concur with each other, the two of them are compulsory heirs.
Legitime
Legit Asc = ½ of estate
SS = ¼ of estate
Arbitrary yung ¼ ng SS para may free portion.
Leg asc concur with surviving spouse and legit children
Who are CH? Leg asc are excluded. Only ss and legit children are
compulsory heirs
Legit asc concur with surviving spouse and illegit children
Hindi maeexclude ng SS and IC ang legit asc. Kasi nga illegit and affinity
lang sila.
Illegit children will not exclude the SS either.
Legitime
LA = ½ estate
IC = ¼ estate
SS = 1/8 estate
1/8 = remaining free portion
Nagloko kasi si Mr., nangaliwa sha kaya lumiit yung kay misis. Ano’ng
suma total? Pinarusahan si Misis nung nangaliwa si Mister. Bakit
ganun? Bakit si Misis naprejudice? KASI BAOG SHA. She failed to
provide her husband with offspring kaya nag-experiment sa labas yung
asawa.
Noong unang panahon pag hindi nanganak ang reyna ng lalaki,
pinupugutan ng ulo. Catherine of Aragon. Henry VIII. St. Thomas
Moore refused to recognize the divorce of the king. Cessation of
England from the Catholic Church. Elizabeth I.  James I, son of Mary
Queen of Scotts the King James version of the Bible. Bat ba tayo
napunta jan.
Legiitme of the ascendants is fixed at ½ of the estate. Hindi nagbabago
yan. Sino ang nagbabago? Yung legitime nung ILLegit children and SS.
NEXT CLASS OF COMPULSORY HEIRS
ILLEGITIMATE PARENTS
Kanina legitimate “ascendants” pero ngayon, illegitimate “parents”
that is significant. Later on you will find out that illegit ascendants are
barred from inheriting.
If survive alone
½ of the estate as their legitime
NB only illegit parents who recognized their illegit children are entitled
to inherit.
E.g. Ron and Ani are married to each other pero nagkaron ng affair si
Ron at Eva. Si Eva naman kasal kay Mel. Nagkaanak si Eva kahawig na
kahawig ni Ron. Sabi ngayon ni Mel, bat hawig ni Ron? Napaglihian ko
kasi si Ron. Busit na busit ako jan dati. Child is your child is an act of
faith. Manampalataya ka na lang na anak mo nga ang anak mo pag
sinabi ng Misis mo.
Kaya during the old days to ensure that the crown prince is a
descendant of the monarch, binabantayan yung prinsesa. Bantay
sarado yan. Para sigurado kung magbubuntis sha, yung crown prince
ang tatay. Ganun din ang reyna. Sigurado dapat na anak ng hari yung
anak ng reyna. Anne Boleyn. Anne Boleyn rumor that she wanted to be
impregnated by her own brother. Executed for treason. It was just a
frame up for a reason to execute Anne Boleyn so he could marry again.
The Court must be present during Queen’s labor. Changeling. Baka
mapalitan! Privacy was a luxury that royalty did not enjoy. Queen
Victoria had 11 children but she considered sex as something dirty.
From all her children, descended all the monarchies of modern Europe.
Even the consort.
Nagkaanak ngayon si Eva kay Ron. What Ron did now is a affidavit is
that Eva’s son is his illegitimate son. Pag namatay si Ron, makakamana
ba yung anak ni Eva. Liyao v Liyao. Child of eva is presumed legitimate
of Eva and Mel. Presumption of law, that child is presumed to be
legitimate. Not any tom Dick and Harry can recognize the child as his
illegit chld. That would have no legal leg to stand on. That’s the
realities that the law should address and require reform. Overthrown
by action to impugn legitimacy. Only Mel can file. During minority of
illegitimate child, by his heirs. Prescriptive period din of 3 years. Hindi
basta basta nagrecognize ka, anak mo na.
Recognition of illegit child by putative father is subject to consent of
illegit child. He may refuse the recognition of the putative parent. Bakit
Page 40 of 63
ngayon lang dahil mayaman na ako? Provision allowing refusal of
recognition was repealed/suppressed in the FC.
Suppose illegitimate child is recognized by 3 fathers. Parang yung
Mamma Mia. Lalabas yan sa bar na ito!
6 September 2010
ILLEGITIMATE PARENTS
Compulsory heirs when they survive alone, they are the only CH.
Entitled to legitime of ½ of the estate of the decedent and the other
half is free portion. The question is, who are illegit parents? In your
PFR, illegit child cannot compel the illegit parent to recognize him if the
putative parent has already died. Action to compel recognition may
only be instituted before the death of the putative parent. How about
the reverse? Who is the illegit parent entitled to inherit from illegit
child? Who must recognize the illegit parent to entitle him to inherit
from the illegit child?
In CC, illegit child, over 18 years cannot be recognized by illegit parent
without consent of the child. But thi sprovision was suppressed in the
FC. Suppose very wealthy illegit child die, someone claims inheritance
now that he is illegit father. Can he prove his paternity after the death
of child. In the CC cannot do that because no consent if dead. BUT
under FC, may someone cliamiing to be illegit parent, prove his
paternity to claim his inheritance? Hindi maliwanag sa batas. Don’t
forget Liyao v Liyao ruling child presumed legit under the law, cannot
be the son of another person claiming him to be his illegit child. Hindi
pwedeng dalawa tatay mo. Isa lang. Unless somebody mpugned your
legitimate filiation.
Pano yung Mamma Mia. Tatlo yung nagkeclaim. Pareho pang buhay
yung tatlo, interesado sila malaman who the real father is, magpaDNA
na lang sila. Buti nga may DNA ngayon, noong araw wala.
Manampalataya kang anak mo yan. May the three claiming to be the
putative father enter into a compromise agreement? Mukhang mas
kahawig mo, hayop ka. Under the New CC, one of the matters which
can’t be the subject of a compromise agreement. Status of persons.
Cannot be the subject of compromise or agreement.
For our purposes, since wala nakalagay sa batas kung sino illegit
parent: In case filiation is denied by any interested party, filiation has
to be proven by all kinds of evidence admissible under the RoC. Pwede
rin siguro yung DNA. May client akong popular na movie actor. Bago
sha namatay may nagkeclaim na anak. Bago inilibing. Nakausap ko
yung widow. Mam, pinaDNA mo na ba? Oo shempre. Same shall apply
in case a wealthy child applies and there are potential claimants
claiming to be illegitimate parent. That evidence should be decisive in
determining the paternity or filiation of the child.
Illegit parents are excluded by all kinds of children. Legitimate and
illegitimate alike.
Are the illegit parents excluded by the spouse? NO, if the surviving
spouse concurs with legit ascendants, more reason to allow
concurrence with illegit parents.
All of them are compulsory heirs
Ilelgite parents =1/4
Surivivng spouse = ¼
Remaining half is free portion

What have you observed from this assignment of legitimes?
Illegit parents are given only 1/4, unlike legit asc who are given ½
Legitime given to spouse is ¼ when concur with legit asc but why oh
why is the surviving spouse given the same legitime when they concur
with illegit parents. Kasi it’s not the spouse. It has nothing to do with
issue of spouse, but legitimate relationship. That should not benefit
the spouse whose legitime remains at ¼
In FC, when legit parents concur with adopting parents: What is their
inheritance?
IBP Journal basahin niyo yun. Baka dun ako kumuha ng exam.
Legitimate children and descendants. When legit children survive alone
as a class, only them survives, only them is CH. Legitime ½ of estate
What if it came from different marriages and the first marriage lasted
longer than other subsequent marriage?
Yes they will have same legitime. Walang kinalaman length of parents’
relationship sa kanilang filiation. It is only the valid marriage that’s
required for legitimacy. All of the children have same right against
estate of Ron as legitimate children.
Suppose legit children concur with legit ascendants. Who are CH? Only
the legit children. The legiti asc are excluded and I have already
discussed the reason why.
Suppose legit children concur with uncles (borthers and sisters of
decedent? Only the children are CH. Kung yung nanay nga naexclude
nila, lalo na siguro ang mga collaterals.
Suppose legit children concur with stepmother (father married second
time when mother died). Who are the CH? All of them are CH. All the
children by the first marriage shall inherit as legit children and the law
assigns to the a legitime of ½ of the estate. What is the legitime of the
surviving spouse. The legitime of surviving spouse is equivalent to one
legitimate child, coming from the other half of the estate. Remainder
after legitime of wife is paid shall be the free porition. What’s the
ocnlcusion. Habang dumadami ang legitimate na anak, lumiliit ang
surviving spouse. Bakit ganon? Kasi nga mas matimbang ang dugo sa
tubig. Hindi mo kaano-ano yang asawa mo Ron. Mahirap lumaki
legitime niya na affinity ang relationship kesa sa blood relationship.
Though di kayo nakakasiguro na anak niyo talaga kasi yun ang
representation ni Misis. Maski di niya anak yung children, hindi naman
relationship sa wife nirereckon yung relationship ng legit children.
rather, from the decedent, not from the surviving spouse. The more
the legit children, the smaller legitime of spouse.
Suppose survived by just one legit child and the spouse? The two are
the CH. Legit children do not exclude the surviving spouse from the
inheritance.
Legitimes:
If we follow the formula that legitime of spouse is same as legitime of
the child, in this case, the legitime of legit child is ½. Then ½ din yung
suriving spouse. If we allow it, nothing left for the free portion. Hindi
pwedeng wala kasi baka maya may donation intervivos decedent gave
during his life time against which those donations will be charged.
Otherwise puro inofficious sila. Para may free portion, may binawasan
natural yung surviving spouse. Hindi naman kasi sha kadugo. In such a
case, legitime of spouse is reduced to just ¼ of the estate of the
decedent so that ¼ will remain as free portion.
Suppose surviving spouse concurs with an adopted child. Sino CH? The
two of them are the CH. Adopted child will inherit as a legit child. ½
and ¼ pa rin ang inheritance. NB legit children includes legitimated
children as well.
Page 41 of 63
Suppose Ron and Ani got married. Okay mas gusto naming si Eva. Mas
popular ang labtim na ito, sorry Ani. On the 2nd year after celebration
of marriage, Eva had an affair with Mr. Pana. Nagka-anak, what’s the
child’s status. Presumed legitimate of Eva and Ron. Later. Si ron nagkaaffair kay Ani. Nagka-anak din kay Ani. Lalaki yung Eva Pana, babae Ron
Ani. Ron hid his affair with Ani, nagmeet yung mga anak nila. Hindi nila
alam na may connection sila. Nagkagustuhan nadevelop. Sabi ni Ani,
itong anak mo ay mamanhikan dito. Sabi Eva, ron mamanhikan tayo.
Pwede ba magpakasal yun? Under the law, presumed anak ni Ron yung
anak ni Eva. So magkakaron sila ng relationship ditto kay Ani. Later on,
natuloy ang kasal. Pwede ba patunayan nung anak ni Eva at Pana na
hindi naman talaga sila related dun sa anak ni Ron kay Ani. Back it up
with DNA results, pwede bang isave yung validity ng kanyang
marriage?
If you allow the son of Pana by Eva to prove that his real father was
Pana, what is the effect on his inheritance from Ron? CC works on the
basis of legal presumptions and those presumptions will be
overthrown only through a procedure provided for in the law. Until
and unless that procedure is followed to prove a different paternity or
filiation, the presumption will stand.
Suppose there are no legitimate children because they died ahead of
the grandparent, sino na lang natira? Only the legit grandchildren.
X
A
D
|
B
EF
Y (1/6)
C
GHI
Ang legitime nila ½ of the estate. Kasi legitimate children AND
descendants. How will DEFGHI divide among themselves the legitime?
Take what their parent was supposed to inherit? In compulsory
succession insofar as legitime is concerned, descendants always
inherit in representation of their deceased parents. That’s A898
A, B, C gets 1/3 of ½ of estate = 1/6
D gets 1/6
EF get 1/12
GHI get 1/18
Suppose grandchildren die at the same time during a hostage. All the
greatgrandchildren inherit by right of representation.
Ang problem natin ay pag may natirang asawa si X na si Y.
Kung ang natira concurring in the inheritance with the children is Y.
Assuming children are still alive  Y gets 1/6 coming from the frree
portion. 5/6 na lang free portion.
If children are no longer alive.  Ano sabi ni Tolentino? Hindi na kasi
kayo nagbabasa. See page 307.
Gumawa tay ong problem na pareho sila ng legitime. Kuware
tagdadalawa lang sila ng anak.
X
A
DE
Y (1/6)
|
B
C
FG
HI
Di naman pwede that we compute wife’s legitime using the number of
descendants kasi nga otherwise, the children will all repudiate so that
the surviving spouse will be prejudiced. Illustration: Hindi nila nanay si
Y. ABC repudiated the inheritance, they are not to be represented, the
grandchildren therefore inherit in their own right. Since the same
degree, the legitime willb e shared by all of them equally.
So DEFGHI each get 1/12 - descendants as a GR inherit by
representation EXCEPT in case of repudiation. Where they will inherit
in their own right not be representation. No regard kung ilan silang
anak ng magulang nila. Next nearest of kind. Per capita na sila.
Prejudice their stepmother by repudiating. Naging 1/12 na yung
legitime niya. We should not allow them to use repudiation to
prejudice.
If we follow Tolentino, that provision on surviving spouse will never be
applicable any time. Principle of statutory construction, when framers
insert word there, it’s intentional, there’s reason why they inserted it.
Pag sinunod natin si Tolentino, “or descendant” phrase will never
apply.
Problema pati kung iba iba ang legitime ng mga apo dahil iba iba sila ng
share. Hindi nagrepudiate lahat ng anak.
It was a wrong provision of the code. Dapat, it should be computed on
the basis fo the children. Cannot repudiate, predecease, incapacitated.
Only of the basis of the legitimate children. Pero magkakaproblem din
dun. Mabuti kung magrerepudatie lahat. What if only A repudiates?
Pag nagrepudiate si A, yung linya niya, din a magmamana. Burado na
sila sa hatian, as if he has not existed. Descendants could not represent
their representing parent. Resulting legitime:
B ¼ so EF get 1/8 each
C ¼ so GHI get GHI get 1/8 each
Lumaki tuloy si Y naging ¼ sha.
So anong rule? Application of the rule leads us to problems.
Napakadami niyang problema. During my early years, I will choose
subject I will teach. Isa ako sa pinagpala ng anak ni Carale na
nakapagbigay ng ganyang condition. Ako yung namili ng ituturo ko.
Hawak ko na PFR Negotiable Corpo Succession. Sa exam lagi ko
binibigay yan to test kung naintindihan niyo yung provision ng 892.
Ngayon hindi na kasi extensive discussion na sa class.
WAIT
So kapag lahat nagrepudiate, may right of representation all the descendants.
Pero pag isa lang, excluded totally even the descendants of the repudiating
child.
When the legit children concur with illegit children… Who are the CH?
½ to legit children divided among them equally, ½ of the legitimate
child is the legitime of an illegit child coming from the other half.
Let’s Illustrate that:
A
|illeg
D
|leg
BC
D = 1/8 E
BC = ¼
FP = ½ - 1/8(1/4)
Observation:
Habang dumadami ang illegit children, nauubos ang free portions
A
Page 42 of 63
|illeg
BCDE
|leg
F
WAIT: so pwedeng maubos ng illegit children ang free portion?
ILLEGITIMATE CHILDREN
When illegit children surivvie alone as a class, only them are CH. How
much is their legitime, ½ of the estate. Divided among them equally,
regardless of the mothers or fathers. Parang si Dolphy. Kasi wala pa
shang pinapakasalan. Lahat ng anak niya ay illegitimate. So when he
dies, he will be survived by illegit children. May anak shang babae, si
Sally Quizon. Lou Salvador Sr. isa rin sha sa walang pinakasalan. That’s
one reason they don’t want to get married. Para walang bastardo.
Panahon ito ng suddenly diba? Legitimate na lang ay yung kay Zsazsa. 2
yung magiging legitimated na anak niya. Parang unfair. Kaya parang
ayaw na nya magpakasal. Sayang di ko naisip yung ng maaga-aga.
Ilelgit children used to be of 2 types: natural and spurious, but under
the FC the distinction between 2 kinds had been abolished.
When illegit children survive with legit asc? Leg asc ½ illegit children ¼
divdided among them equally, FP remaining ¼
Suppose legit children concurred with the spouse.
Legitimes:
Illegitimate children with illegitimate parents? Illegit parents are
excluded. As they are excluded by all kinds of children.
A
|illegit
C
When legitimate children with illegit children? You know the formula
already.
F = 1/2e
BCDE = ¼ reduced to 1/8 each
Reduction ang tawag jan kasi mauubos yung free portion. Preferred
ang legitimate children. Di pwedeng magpautang para bayarang
legitime ng illegit children.
|
B
W
W gets ¼
B gets ½
C gets ¼
Naubos ang free portion, just enough to pay the legitimes.
Baguhin natin ang composition.
Dalawa anak sa labas at legitimate.
A
|illegit
DE
W
|
BC
Wife gets ¼
BC (legiti children) get ¼
DE (illegit children) get 1/8 each
Supishente pa.
But suppose… tatlo anak sa labas.
A
|illegit
DEF
|
B
W
W get ¼
B get ¼
DEF get ¼ each
Between children and spouse, who has preference? Legit children has
highest preference, has to be paid in full for the legitime before others
are paid. Between wife and illegit children, who suffers reduction?
Dilemma yan, under the old CC, not a problem, illegit children had no
successional rights.
Ngayon sino na preferred natin. Wife without blood relation or illegit
children. Framers of the code reslves the problem in favor of the
surviving spouse.
Bayaran natin ang ¼ ni W so the remaining ¼ na lang ang paghahatian
nila DEF. The illegit children suffered reduction.
Suppose illegit child concurs with spouse? Ilelgit children get 1/3 as
their legitime divided among them equally, surviving spouse get 1/3 of
the estate as her legitime. Remaining 1/3 is FP.
When the illegit children concur with legit asc and surviving spouse:
Leg asc get ½, illegit children ¼ among them equally, surviing spouse
1/8 leaving a free portion of 1/8
How about the spouse?
Suppose surviving spouse survives with
brothers/sisters/nephews/nieces of the decedent, who are CH? Only
spouse is the compulsory heir. She is entitled to ½ or 1/3 as legitime,
depending on circumstances of marriage to the descendent. When the
surviving psouse was married to the decedent within 30 days in
articulo mortis (A900), the legitime of the SS is only 1/3 of the estate.
But if married not in articulo mortis, even if 2 days before the death, ½.
What is the reson behind reduction in legitime if the SS was married to
the deceased spouse in articulo mortis? Nagiging fortune hunter si SS.
She should not be rewarded for such an indecent motive.
Pero kung hindi in AM but dead day after, maski pa under mysterious
circumstances, A900 will not apply.
Suppose the spouse
|
A
B -
W
W get ½ estate
But the FP if not given to anybody through will, A will get the FP
Lahat ng CH exclude all legal heirs except SS. SS concurs with
inheritance, brothers nieces, nephews.
Suppose buhay pa si XAD. Only X (parent) and W will inherit. Excluded
si AD. X gets ½ wife gets 1/4
That concludes discussion on amounts of legitimes.
8 September 2010
Restriction regarding the legitime
Page 43 of 63
A904
A872
B = ¾ (240) = 180
So we have to check, naimpair ba legitime niya? Hindi kasi ang legitime
ay 60 rin naman. Therefore, we’ll have to respect the disposition.
Must disinherit the CH for the ground provided for in the law.
A905: every
When the testator gives his CH an inheritance less than CH, the
testamentary provisions cannot be given full effect. Testamentary
provisions cannot impair the legitimes of CH. If legitimes are impaired,
the law directs the payment of legitimes even if such payment of the
balance will result to suppression of the other testamentary
dispositions.
Let’s illustrate through some examples the operation of these
restrictions.
The testator has 2 legitimate children: A and B
Testator
|
A
B
Testator has three children ABC and surviving spouse.
Testator - Wife
|
A B C
Disposition in the Will
A–½E
BC = ¼ E
W=¼E
Estate = 240
360 in the circle is arbitrary. Marami kasi shang factors.
Before T died, he executed a will. Giving A = ¼ of estate and B = ¾ of
the estate. Ano conclusion natin jan? Paborito si B(unso). If the estate
at the time of T’s death is 240M, divide the estate. Distribute the
estate.
Manresa has given a queer way of solving/approaching the problem.
Since T cannot dispose by will the legitimes of CH, then necessarily the
disposition in his will can only apply to free portion.
Manresa’s solution: When there’s CH
Heirs
A
B
Tolentino has a discussion on the Manresa solution.
DLC: The Manressa solution will only apply to legacies and devises not
in institutions.
Legitimes
60
60
120
Will
30
90
120
Total
90
150
240
Give them their legitimes first, unless validly disinherited. What is
legitime of CH in this estate? It’s ½ of the estate = ½ of 240M.
Heir
A
B
C
W
Will
120
30
30
60
240
- 16
+ 10
+ 10
-4
Total
104
40
40
56
240
Then check whether the total legitime was impaired
L= ½ (240) = 120
L1 = 120/3 = 40
Wife gets 40 too
Hindi pwede to kasi naimpair ang legitime ni BC tas sobra mashado kay
A and wife
Since BC will receive less than their legitime, they are entitled to a
completion of their legitime.
L = ½ E = ½ (240M)
=120 M
LA = 120M/2 = 60M
San manggagaling yung ibibigay natin sa kanila? Kay A ba or W? Who
suffers the reduction? Later on we’ll discuss that “he who received the
FP will shell out the amount needed to complete the impaired
legitimes of CH. If there are more than 1 heir who received a prition of
the FP, all of them will suffer a pro rata reduction.”
Since there’s free portion. The provisions in the will apply only to the
FP.
FP = Estate – Legitime
= 240 – 120
= 120 M
¾ and ¼ of 120 M
Since the legitime of A is only 40, he got 40 from the FP. Wife got 20
from the FP. Two of them will have to share the burden to complete
BC’s legitime prorate.
This is the Manresa solution. Pero maraming hindi bilib jan, isa na ako
dun! Si Baviera saka si Balane din. Binigay na nga legitime, laki pa
nadagdag.
DLC: When testator provides that, that’s the intention of testator.
Including the legitime already. If that ¼ is smaller than the legitime,
then we have to pay additional amount to complete the legitime under
A906.
So pano solution jan?
A = ¼ (240) = 60
A = 80/100 (20) = 16
W = 20/100 (20) = 4
20 being the value needed to complete BC’s legitime.
*Complete the table using these values.*
In response to a question…
T
Illegit|
C
–
W
|
AB
Page 44 of 63
Will:
Legacy of 10 M to D (favorite nephew)
E = 240
Distribute first the legitime we have to pay because that would
determine the FP from which the legacy will come from
Heir
A
B
W
C
Legitime
60
60
60
30
210
Intestacy….
FP will be 240 – 210 = 30 M
Since 30 M yung FP mo, that will be the source of 10 M legacy.
30 – 10 M = 20 M
How do we proceed with 20M? Intestacy.
Divide the 20 M in such a manner that they get 2 parts each while C
only gets one. Basta 1/7 it’s ahead of you.
But suppose naging 2 yung illegit children. Kasali na si E. So magdagdag
us ng heir dito. 30 din. D gets nada because no more FP left. Sorry na
lang you. Hindi lang legacies tinatamaan. Damay din minsan ang CH.
Yung mga illegitimate children. Kung napakadami nila this much dapat,
but since onti na lang natira sa FP (from which their legitime will come
from), their legitimes will be reduced.
Forget about the Manresa solution. It’s wrong. If we follow that, it will
render nugatory the provision of the Code on preterition. Bangga yan
dun.
PRETERITION
A854: If you read it, a phrase is missing there. Omission is a transitive
object. Omitted from where? Dati kasi “omission from the will” yan.
So how did SC interpret 854? Now it means “omission from the
inheritance”
When is a CH omitted from the inheritance? It should be total omission
from the inheritance.
When does total omission happen? When a CH will not receive from
the testator anything by will. By intestacy or by advance from his
inheritance.
How is advance from inheritance? Donation IV given to CH during
testator’s lifetime is an advance on the inheritance of that CH-donee.
If T had given donation IV in favor of CH but totally omitted him from
the will, nothing from the will? The CH cannot cry/complain that he
was totally omitted. Ano’ng totally omitted, nakakuha ka nga ng
advance diba?
If you look at standard English dictionary, there’s no such word there.
Kastila yan. Englishcized na lang. In the interpretation of Old CC,
preterition is limited to total omission from the will because of
inadvertence or wrong assumption.
E.g. Yung isang anak ng mayamang royalty in England, sumama sa
isang expedition to East Indies looking for spices, di nakabalik. Sabi
siguro ng magulang, patay na. So on that assumption, in his will, he
gave all his wealth to remaining children and nothing for the missing
son. In fact, he was not even mentioned in there. Kaso biglang lumitaw
after parents’ death. Oy sandal yung mana koooo. Pag mana na ang
usapan, lilitaw na. Eh kaso wala sha sa will. That’s preterition under Old
Code.
Effect  annul the institutions made in the will. That’s the effect also
in A854.
The concept of preterition has changed under A854. No longer limited
to total omission from the will, but now total omission from the
inheritance.
Who may be preterited (i.e. subject of preterition)? Only compulsory
heirs.
Yung illegitimate child? CH ba yun? YES. May he be the subject of
preterition? YES
How about the surviving spouse? CH? YES Preterited? NO because not
all CH are subject to preterition. Only CH in the direct line may be
preterited. (Balanay v Martinez)
How about an adopted child? Is he CH of the adopting parent? YES May
the adopted child be subject of preterition? YES (Acain v Iya)
Bakit legitimate children pwedeng subject of preterition? CH in the
direct line (Aznar v Duncan)
What is the effect if a CH has been the subject of a preterition? The
effect is annulment of the institutions in the will. However legacies and
devises shall be respected insofar as there are non-inofficious.
What conclusions can you gather from the effect?

If the testator executed a will but all dispositions are legacies
and devises. The issue of preterition is immaterial. Kasi maski
meron, wala naming iaanul, walang institution in the will,
everything is legacy.

Not only that, there can be no preterition if decedent left no
will.

Suppose no CH: pwede ba magkaron ng preterition? Lalong
hindi!
Illustrate: Suppose Ron died a bachelor, no legal or illegitimate issue.
Wala ring parents, asawa. Sino lang natira? Yung kanyang mga kapatid.
How many siblings does he have. Bigyan nating apat na kapatid si Ron
dahil only child sha. He gave all his properties to his bestfriend Eva.
Baka maging adulterous relationship. Bestfriend niya si Pana (eh sir
mas adulterous) ang kanyang constant companion. So executed his will
giving all his worldly possessions to Mr. Pana. Can the siblings complain
that they were the subjects of preterition? NO, because they’re not
CH. Hindi nga sila in the direct line. Collateral pa sila. Therefore, since
they cannot complain of preterition, the will shall be respected and
everything that Ron left behind will be given to Mr. Pana.
Illustrate one with preterition: Let’s go back to the case of Nuguid v
Nuguid.
A
|
B
C
BC were old maids. Wealthy B gave everything to only sister C. Bakit ko
bibigyan si Mommy mamamatay na rin lang naman sha.
Magkakaproblema lang sha sa tax pag namatay sha so kay C na lang.
Was C preterited? It depends on whether she was totally omitted from
inheritance.
FIRST QUESTION: Will A receive something from the will? Nothing, not
even a single kusing.
Page 45 of 63
SECOND QUESTION: Receive anything by intestacy? No intestate
portion from which A can get a share in the inheritance.
THIRD QUESTION: Is there an advance through donation IV? Nothing
If we answer NO to all, there can be preterition. What is the effect?
Annul institution of heirs.
Will:
Institute C to the entire estate.  effect: annulled
Legacy to X in 10M  inofficious if exceed FP
Estate of 240 M
Everything will now go to A which is 120 M
FP = 240 M – 120 M = 120 M  charge the 10M legacy to the maid.
Inofficious ba? Nope.
After legacy, 110 remained in the FP. It goes to A too.
reinserted it through an amendment through floor on congress. Kala
niya alam niya yung ginagawa.
While 891 is there, there were a lot of companion provisions that were
not restored. All principles that grew out of reserva troncal are
deemed reintroduced even though hindi sha nakasulat.
A
-B
|
C |
E
F- G
|
D (Sabrina)
Sir bakit nawalan si C? Hindi po kasi sha CH. Excluded pa rin ni A si C.
She’s not a legal heir.
Sabrina is daughter of driver and labandera. Lolo A donated inter vivos
to E. 10 years old namatay sa dengue. Ano yung nasa estate ni E when
he died? Hacienda donated to him by Lolo A. Who inherits it then?
Only one compulsory heir: Sabrina. Hacienda now goes to mother as
only CH entitled to inherit.
Ano effect ng preterition? The entire estate went to her mother. Ayaw
bigyan ang nanay. But because of preterition nabaliktad.
Early in our discussion, I have pointed out: institution on the one hand
and legacy and devise on the other. There is an important for you to
know the difference between the two and the distinction will be used
in preterition.
So ano na sasabihin ni D kay A? Kayo na po ang labandera at driver
naming. Pag namatay si D, kay F and G mapupunta yan. There’s
something wrong with that. The hacienda used to be ours!  This is
what sought to be prevented by reserva troncal. In the hands of D, the
hacienda is reserved. When D dies, property does not go to F and G but
to family where property came from.
Mai: As long as there’s FP, there’s no preterition. (?)
From the diagram on the board, there are four parties to a reserva.
1. Source of the property – mediate source – A
2. Prepositus – E
3. Reservista – D
4. Reservatario - A
So kapag may binigay na kahit onti lang… icocomplete lang yung
legitime niya under 906. Pero hindi preterition, so respect pa rin ang
institution. Coming from whoever received the free portion.
Presumptive legitime first appeared in the old marriage law.
Promulgated during American occupation. Kalokohan kasi yang
presumptive legitime. How was it defined? Legitime children are
supposed to receive if we assume that parents die today. Since that is
presumptive legitime, it’s subject to adjustment later on (e.g. naghirap
ang mga magulang later). Hindi ko alam kung ano nakain ng FC
commission at ibinalik nila yan. Dun sila sa matatandang batas sanay
kaya ibinalik nila. Kaya nga tinanggal yun nung 1950. Nagkaron tuloy ng
ground si Kris Aquino.
Ixara: If the advance donation is less than the legitime, there will be NO
preterition.
That’s why Manresa’s solution is incorrect under the Philippine system.
That’s why Solano v CA is incorrect decision penned by Ameurfina
Melencio-Herrera. SC corrected itself in a subsequent case, not in your
list. Babagsak sha. But she’s the valedictorian of our class. Sereno’s
class is debacle, no one landed in the top 20.
For reserva to arise, the parties must be LEGITIMATELY RELATED to
each other. When one party is illegitimately related to the other. Hindi
pwedeng magkaron ng reserva.
How about if E is the adopted child? Suppose E is adopted by C and D.
Pwede ba magkaron ng reserva? Sino ang natural parents ni E kung
adopted sha? Napunta sa natural parents, will there be reserva. In
determining reservatario, the reservatario must be relatives of
prepositus, hindi rin babalik sa source. Applying the ordinary rules,
defeated yung purpose. OPEN QUESTION. GO BACK TO THIS LATER.
Who may be the SOURCE?
For there to be reserva, the source must be ascendant of prepositus
OR brother or sister of prepositus. Illustrate that:
A sibling of B – C
|
D
13 September 2010
A donates to D. D dies. In the hands of C, is that property reserved?
NOT reserved. Because A is not an ascendant BUT collateral relative of
B. Ang pwede lagn maging source in reserva is ASCENDANT or
BROTHER OR SISTER OF PREPOSITUS.
Ascendant lang so dapat direct line lang. E.g.
RESERVA TRONCAL
May be the last remaining feature of property entailment under the
Old Civil Code. Entail a property within a family. There were many
reservas in the old CC. Reservas and reversions. Original draft of NCC
did not have reserva troncal but smart aleck congressman from visayas
A
|
B
|
C
Suppose Ron disposed everything through legacies and devises, no
institution. Will there be preterition? NO kasi nga nothing to annul.
Page 46 of 63
If A donates to C, may potential reserva ka na. A is an ascendant of the
supposed or potential prepositus. Dapat legitimately related therefore
if B is illegit child of A and recognized C as his illegit grand child, there
can be no reserva.
How about a brother or a sister, for there to be reserva, may the
brother or sister of the full-blood or must the brother of the halfblood.
E
|
A
F
G
|
C
|
B
H
D
In the hands of B the property is reserve, for all the relative of D from
the same property.
Ano sabi Tolentino?
Ano sabi ni JBL? Bull shit. Pag full blood brothers, pareho sila ng
relatives.
Purpose of RT is to bring a property back to the family where it used to
belong and ahs gone astray because of accident i.e. preposterous dying
without any issue. Property getting out of the family.
In the hands of B, property has not gone astray. It’s still under the
family of the property of the source.
Legiitmate half blood brother.
F
GH I
|
A –
B D
|
|
C
E
Namatay si A, biyudo si B nagkaron ng 2nd wife with D and child as E.
C donated property to E through gratuitous title. Namatay si E without
legal issue so nagmana si D by operation of law. In the hands of D, hast
the peropty gone astray? YES, Hindi naman sha kaano-ano ni C. not
blood relative. Step mother lang yan. Affinity lang sila. Left the
property of the source. Kaya may reserva kaya go back when the
reservista dies.
Iba ang opinion ni Tolentino. DLC agrees with JBL, Ricardo Puno and
Balane (sabi ni Cams).
Illustrate the application of that principle through concrete problem:
Ron bought insurance on his life for P5M double indemnity in case of
accident. He designated as irrevocable beneficiary a favorite grandson
by one of his children. Namatay si lolo Ron by accident so insurance
company paid P10M to 3 yo grand son. Namatay yung father ni Ron
son of donor grandfather. Namatay din si apo. Sino nagmana ngayon
ng P10M insurance? Manugang. In the hands of daughter in law of
Ron, is the P10M reserved?
A
|
B
|
D
A gave D irrevocable beneficiary P10M insurance. In the hands of C is
the 10M reserved? Anifairs says NO because P10M proceeds did not
come from A. Nagbabasa sha ng Tolentino. Kanino nanggaling from the
insurance company. It was not donated. It was paid by insurance
company in compliance with aleatory contract of insurance. Hindi libre
yung dahil bayad ang premium non. A is not the source fo the P10M,
he is only the source of the premium paid, if at all.
NB for there to be reserva, the property should be acquired by
prepositus from the source by gratuitous title. Donation and
inheritance whether testamentary or intestate. Dalawa lang ang
gratuitous acquisition.
PREPOSITUS
Must either be descendant of mediate source OR halfblood sibling of
mediate source. When a property was acquired by his descendant or
brother or sister gratuitously, may the descendant/sibling-donee
dispose the donated property? YES, in the hands of that descendant,
the property has not restriction as yet. Hindi pa sha reserved. Pwede
pa niya ibenta. Pwede niya sirain kung gusto niya. In his hands,
property has no restriction as yet.
What if sold to a 3rd party, wala na amamanahin reservista to
prepositus? How about the proceeds of the sale of donated property?
binenta tas nilagay sa bank yung P10M na pinagbentahan. Is there a
reserva on the proceeds on the donated properties? NO there is no
reserva. It’s constituted on the very property that was gratuitously
acquired, it does not transmit. Proceeds do not substitute for the
property. it’s not carried over to proceeds or substitute of the property
donated. Reserva ataches only to very property received gratuitously
by the prepositus. Not attach to the substitute property.
Prepositus becomes the arbiter of the reserva. If he disposes before he
dies, no reserva arise ever. BUT if choose to not dispose, reserva will
arise. Sha yung arbiter of the reserva.
CK, what if prepositus improves the property? Apply accession rule:
owner of land owner of all improvements. Iba ang rule for the
reservista.
RESERVISTA
Under the law, reservista is “another ascendant” of the prepositus.
A
|
B
|
D
C
A donated through gratuitous title to D. In the hands of B, is the
property reserved? According to Tolentino, the property is reserved.
Ano sabi ni JBL Reyes and Puno? In the hands of B, property did not
leave the family. There’s no occasion for us to apply the RT to reserve
the property. Instead proper interpretation: “another ascendant”
“another” not limited to ascendant other than mediate source BUT
ascendant belonging to another family. It’s only then that the property
will go astray. In case of B, hindi naman nawala dahil tatay niya
nagbigay. DLC agrees with JBL and Puno.
C
How must reservista acquire property for there to be reserva? Through
INHERITANCE BY OPERATION OF LAW. Di pwede testamentary
Page 47 of 63
disposition. Because it’s not inheritance by operation of law. ANo yung
by operation of law:
1. Compulsory succession
2. Intestacy
Burahin na natin yung mga hindi kasali.
Among the remaining, direct excludes collateral.
Among those in the direct, descending excludes ascending.
Descending and ascending, nearer excludes more remote.
Does this mean the legitime of reservista
What if si A yung source instead of C? He cannot complain kung bakit
kay C napunta kasi ng pinamigay na niya. Kung may anak lang si P, dun
pa sa apo niya napunta yun.
A
|
C
B
|
E
A
D
A donated gratuitous title by E. D must acquire title by operation of
law. CH (refers to legitime) and intestate succession. Eh pano kung yun
lang talaga yung property ni E? Ano ang reserved, entire property OR
just half of the property (since cannot impose burden/charge on the
legitime)? Enitre thing is reserved. Testator is the imposer, in reserva
troncal, it’s the law that imposed burden or charge. Legitime na niya,
nareserve pa. Kaya nga dapat tanggalin yang reserva troncal na yan.
Patalo yung congressman from Visaya na yan. Di ba kawaa naman si D
nareserve yung kanyang legitime.
Gumawa ng will si prepositus, died single 20 years old and with a will.
Sabi ni E, I hereby institute my mother as my sole and universal heir.
Namatay bigla si prepositus, nadengue pa. Bumabagsak ang kanyang
platelets. St. Lukes sa The Fort. Casualan lang na nag-uusap na
mamatay ka na. Ganun ba, so gagawa na ako ng holographic will. Only
one property left by E (farm donated by grandfather). Is there a
reserva constituted on the property considering there is a
testamentary disposition? Yung kalahati lang ang nadispose by will.
Yung kalahati lang naman ang legitime na nadedefeat ng reserva
troncal. Reserved insofar as half. Naacquire niya not by OPERATION OF
LAW, but by testamentary disposition
Last case decided by SC on reserva troncal is Vizconde Massacre
penned by VV Mendoza who isn’t civilist but political law lawyer kaya
di niya nakita yung RT angle.
Reserved for the relatives within 3rd degree of consanguinity. 3rd
degree from whom? From prepositus.
A
B
|
Csource
|
Q G
D
S
|
T
U
-
-
|
F
E
Rsibling
H
|
P
|
J
I
K
|
N
|
M
L
C donated through gratuitous title to P. In the hands of N, is the
property reserved? YES. For whose benefit?
Kanino na pupunta property? we count degrees from prepositus.
Double consanguinity test: related by blood not only to the prepositus
but also to the source of the property. within 3rd degree from
prepositus by blood and related by blood to the source.
|
D
G
|
H
B
|
F
E
Who are entitled to the property donated by A to F?
A and B. (direct line excludes collateral).
But supposed AB also dead now. Si C G H na lang natira. Si G na ang
magmamana.
What if G also dead: C and H na lang. Pareho sila ng degree. Si H under
A1009 – De Papa v Camacho. Descending collateral excludes ascending
collateral.
What if may half-blood relative? They can be reservatario, provision in
CC which says that half-blood relative get half share of full blood
relative i.e. intestate provision. Applicable to RT in Padura v Baldovino.
Suppose patay na rin si H pero may anak na si I na buhay. Can I take
the place of H so that he will get the 3rd degree and exclude C in
inheritance NO Florentino v Florentino. Among reservatarios, there is
rpresetnation BUT representative must be within the 3 rd degree.
A
|
D
G
|
I
B
|
F
E
H
|
K
May K take the place of H? Yes, because she’s still within the 3rd
degree. So kung patay na rin si G, ang natira si KIC, natural si KI ang
mag-inherit. And C is in the ascending. That’s 1009 as applied in De
Papa v Camacho.
When will it go to reservatario? When reservista dies.
What if reservista is vampire who wouldn’t die? Before reservista dies,
what may reservista do with the property? May the reservista give the
property by will? In the earlier cases, SC said reservista cannot do that
because not part of the estate. That ruling had been abandoned.
Reversed. The rule now says reservista is now the owner of the
reserved property but it is ubject to a resolutory condition. When she
dies, reservatarios still qualified to inherit, reservista loses the property
and therefore if she will the property in LWT therefore it cannot be
implemented/given effect. BUT kung ang haba ng buhay ni reservista
tas ubos na ang qualified reservatario, the reservista becomes absolute
owner of the preropty. Provision in her will will take effect.
Page 48 of 63
If ibinenta ng reservisa during her lifetime, what is status of the sale?
Valid but subject to resolutory condition. Nemo dat quod non habet.
Unfortunately if proprety is subj to reserva but covered by TCT and
transferee did not know about reserved character of preorpty, wil the
3P party’s interest defeat the reservatarios? In a case decided by my
professor Flerida, Sumayaw v IAC. Property was reserved but no one
knows it is such so hindi nakatatak at the back of the title. Reservista
sold the property. Binabawi ngayon from 3rd party buyer. But I’m
innocent purchaser for value. Ano sabi ni Fleri Romero? You ought to
know that it is reserved by looking at documents filed with the register
of deeds. Gusto ko ibagsak yung teacher ko sa land reg. Assuming it’s
there, how would I know I’m not laywer yung lawyer nga hindi yan
alam. I’m not supposed to go beyond the title.
Reservistas are heirs in waiting. They novena “mamatay na sana”
inchoate right – ownership subject to suspensive condition. What is
their right? Since that is the extent, he can only sell that interest
subject to suspensive condition. Yung buyer ngayon ang magnonovena
na mamatay na si reservista habang buhay pa si reservatario. Dahil
kung namatay si reservista na patay na si reservatario, hindi sha naging
reservatario at all.
15 September 2010
Absent si Sir. Yaaay!
20 September 2010
Administrative matters: Make up class kasi out of country on 30th, back
on the 4th. Nov 3 ang enrollment up to 5. Discuss among yourselves
between 18 and 22.
Suppose A married B and has a son C.
D
|
H&A
|
C
EF
-
|
B
G
D donated Lot 1 to C. Now H donated also Lot 2 to C. those 2 lots are
same size, adjacent to each other in the subdivision and more or less
same value.
A died, shortly after him, C followed. Those 2 lots therefor were
inherited by B by operation of law as the only heir. H will not inherit
because collateral. EDFG won’t inherit because excluded by B who is
nearer in degree. DEFG in direct line but are more remote so only B will
inherit all properties left behind by C. Now C left behind 2 properties,
lot 1 and 2 for same value. In the hands of B, are those two lots
reserved? Yung lot 2 hindi uubra kasi galling sa uncle not being a
descendant, definitely not. About lot 1, is the entire lot reserved?
Operation of law, so how did B acquire lot 1, by operation of law both
as CH and as intestate heir. Therefore, entire lot 1 is reserved. Lot 2 is
not reserved because did not come from ascendant/brother or sister.
Maliwanag yun.
Ano ang nareserva? Lot 1 because it came from an ascendant. It was
inherited by C prepositus and all of it was inerhited by B by operation
of law. Intestate heir. Suppose C left a will. In his will, he instituted
mother B as sole and universal heir. Nung mamatay ngyaon sha,
mayroon bang reserva. Is lot 2 reserved? NO way. Lot 2 will never be
reserved. How about Lot 1? The entire two lots will go to B, pero
different concepts. One as testamentary heir and CH so walang
instestacy (all properties disposed by will). Therefore b will receive
legitime as CH and receive the free protion by way of testamentary
succession. ½ legitime and FP is also ½.
The FP that D will receive by will is not subject to reserva. Which of
these two properties is acquired by FP and which property is acquired
by legitime? Sabi ngayon ni B. Itong lot 2 is half so yan ang aking
legitime. Yang Lot 1, yan ang aking gagawing testamentary disposition
by will. Acquired by legitime. If you allow b to do that, mawawala ang
reserva. If we allow him as the ½ of the estate acquired by her by will,
that property will not be reserved. If we allow her to treat lot 2 as
acquired by legitime, it will not be reserved because lot 2 did not come
from an ascendant (H). if we allow B to do that, she will become the
arbiter of the reserva. Sha magsasabi kung may reserva or wala. Treat
or classify properties according to her discretion which cannot be
allowed. She cannot do the classification of property herself,
otherwise, she will become arbiter of the reserva. Sino ba dapat ang
arbiter ng reserva? Prepositus lang dapat yun.
What to do now? 2 options.
1. Magkano ba legitime? ½ E. Gawin nating legitime yung lot 1,
therefore entire lot is reserved. Kawawa naman si B kasi we
imputed lot 1 as legitime, naging reserva na lahat. Ang tawag
ditto: “reserva maxima” – maximize reservation of property
by imputing the property subject of reserva to the maximum
amount that may be covered by that part inherited by
operation of law. Isinaksak ang lot 1 dun sa pwedeng
saksakan ng legitime. Unfair ito.
2. Reserva minima – each and every property in the estate of
prepositus shall be considered to have been acquired half by
legitime and half by testamentary disposition (will).
Therefore, lot 1 is ½ legitime, ½ of lot 1 is testamentary. Then
½ of lot 2 is legitime and the remaining half of lot 2 is
testamentary. Lot 2 will never be subject to reserva because
did not come from ascednat. Only lot 1. How much of lot 1
acquired by operation of law (yung ½ of legitime lang).
therefore only ½ of lot 1 is reserved applying the principle of
reserva minima.
Ngayon, gugulo ang computation kung hindi sha instituted as universal
heir. E.g. B is instituted to ½ of the estate. Kalahati is deemed to have
included her legitime. The other half is FP by intestacy.
Mas magugulo ito kung hindi institution but devise. E.g. to my mother
B, I give ½ of Lot 1. Iba na naman ang solution niyan.
But in all those testamentary varioations, all you have to do is apply
reserva maxima or reserva minima to find out what part of preoprty
that is reservable was acquired by operation of law. That part acqureid
by operation of law is part that is reserved.
What do we follow in the Philippines? SC is not yet given opportunity
to rule which is applicable. Maxima or minima but all writers in Phil Civ
Law believe that reserva minima is the fairer of the two. Maliwanag
Malabo?
Tolentino has a good example on application of reserva maxima and
minima.
Who wants to discuss the homework? Reserva adoptiva.
Page 49 of 63
DISINHERITANCE
What do we mean by this? Earlier we learned that sister of legitimes,
where a part of estate of decedent is reserved by law to CH. The t
cannot impose any condition, any burden on the legitime of his CH.
May he deprive his CH of legitime. Yes. A decedent may deprive his CH
of their legitimes through disinheritance. Ano naman kaya ang ground
to disinherit or deprive a CH of his legitime.
Under A915, a CH may be deprived of his legit for causes expressly
stated by law. Underline “expressly stated”
Decedent not allow to disinherit CH for ground not expressly stated in
the law. For disinheritance to be valid, be able to point your finger to a
ground written in the law. If you can’t, disinheritance must be
ineffective.
Nasan yung mga grounds?
1. To disinherit children and descendants, whether legitimate or
illegitimate – Art 919. There are no other grounds, exclusive yan. But
there are special laws which disqualify a CH from inheriting e.g. FC.
In case of legal separation, the guilty spouse is disqualified to inherit
from the innocent spouse whether by intestacy or by testamentary
succession. Take notein such a case, it’s not disinheritance but
disqualification. In disinheritance, testator/decedent has a choice
whether to keep CH as an heir or to deprive him of his inheritance.
To exercise that choice, testator will disinherit that CH. Doon sa FC,
hindi disinherit, disqualified by law. Unless you can show a provision
elsewhere, either in this code or other special laws, then there are
no other grounds to dishinerit children or descendants.
2. To disinherit ascendants – Art 920.
3. To disinherit spouse – Art 921
How is a CH disinherited effectively?
Only one way to do that. Through a valid will.
Lolo at lola ni Mariel. Imagine kinasal sha nang hindi sila nasasabihan.
Pwede bang habang iniinterview si Lolo ni Mariel bigla niya sabihin
“Mashado sumama loob naming, so tinatanggalan naming sha ng
mana.” Nabroadcast sa buong bansa. Is that disinheritance effective?
Not an effective disinheritance. Noncupative will/oral will is not
recognized in the Phils. Kailangan gawin through a valid will, either
notarial or holographic.
Eva Carino, the Igorot mother, will also disinherit Robin, what should
she write in the will for the disinheritance to be effective? Not enough
to write the desire to deprive of inheritance. Not sufficient for testator
to simply write in his will not to leave anything to his CH. For
disinheritance to be effective, T must specify the legal cause for the
disinheritance. Kailangan ilagay doon kung ano yung cause/ground for
disinheriting a CH.
Pag di nakalagay yung specific cause for disinheriting a CH, what is the
effect? It is ineffective. Must the testator escape the ground as written
in the law? Hindi niya kailangang kopyahin kung ano yung nasa batas.
The specific act ang dapat niyang ilagay. E.g. there was this wealthy
widow who executed a will disinheriting her oldest daughter on the
ground that eldest daughter refused to cook for her her favorite
pochero. Nagkwento pa na dati dati daw ipinagluluto sha, pero lately
despite her repeated requests na ipagluto ng pochero, hindi sha
pinagluluto kaya masama ang loob niya at dinisinherit niya. Ano kaya
meron dun sa pochero? Ba marunong si Ani, we will ask her to cook it.
Yan ba yung may sawsawan na inihaw na talong at vinegar. Hindi kayo
marunong kumain. Yung isa pochero and cocido. Different sauces!
Cocido is tomato sauce and olive oil. Pochero is the talong with vinegar
and tons of garlic. You don’t know. Malamang madisinherit din kayo.
That act complained about by the mother if that falls in any of the
grounds enumerated in the law, that will be a valid cause for the
disinheritance of the daughter. BUT if the act complained of the
mother does not fall in any grounds enumerated in the law, then
disinheritance is ineffective.
Oh sige, inilagay na ni Ron yung brillante sa tenga. May protocol yan.
Pag sa kaliwa or kanan. Pag sa kanan. Sa ibaba ka po naghikaw. May
hidden metal. Lagi kang tutunog sa airport. Nagalit nanay ni Ron.
Punyeta ka bat ka may hikaw?! Tatanggalan kita mana kasi naghikaw
sha. Is that a valid ground to disinherit Ron? We’ll look at A919. Find
out if the act complained of falls in any of those grounds enumerated
in law.
Refusal without justifiable cause to support the parent/ascendant.
Suwail na anak. May student na makitid mag-isip. Nagtanong, bakit pa
magpapamana kung kapos pala? Maikli pisi mo ng analysis! Dati
mahirap pero tumama sa lotto. Ngayon anak gaganti ako sayo anak,
wala kang mana!
May the heir subject of disinheritance deny the existence of ground
complained about? Yes.
Who has burden of proving when heir denies the existence of ground
for inheritance? Rest upon the other heirs of the testator. Those who
want to inforce the disinheritance. All the disinherited heir will do is
simply deny.
Kung biglang may proof pala sila, Ron will now present proof to the
contrary.
If disinheritance is ineffective, what is the effect?
Suppose T left nothing but a disinheriting will. The will he left behind
had only 1 provision. A provision depriving his CH disinheritance. Una,
yung legitime makukuha ba yun ng CH? Hindi kasi nga yung A915.
How aobut the FP, makakakuha bas ha dun? Hindi nay un glgitime.
Hindi rin sha makakakuha ng share kasi nga the effect of an effective
disinheritance is TOTAL EXCLUSION/DEPRIVATION OF THE HEIR’S
inheritance.
Pwede bang ilagay ng testator sa kanyang will, I hate Ron so much
because he refused to give me support those times I neded support
more treefore, I am reducing his inheritance by half. Pwede bay an?
NO because law does not recognize “galit ka lang ng kalahati” Hindi
pwede ang major major *grabeng grabe* It’s either galit or hindi galit.
Symbol na lang, wala nang salitaan. So so. Ano ba yung ginagamit
niyong salita? Keri. In my radio program, the listeners send txt msgs.
Nasisira ulo naming dahil di mabasa ang text. Lintek ang abbreviation.
Parang crossword puzzle solving. What is this word.
Anger/hatred that T has must be of such nature to compel that T to do
the ultimate act of depriving his CH of inheritance.
Suppose the T had already executed a disinheriting will, may the T
change his mind later on? Of course, will is revocable anytime before
the death of the T. he may change his mind before he dies. But
suppose it’s the other way around, before he executed the
disinheriting will, the T had already a prior will wherein the T
distributed in detail all his properties to named legal and CH. One of
the heirs named in the will was this CH who was disinherited will in the
subsequent will. We know that because of that disinheritane, the CH
will not receive his legitime. Not receive any share in the intestate part,
how about the earlier will which gave him testamentary dipsoition and
first will was not revoked by the disinheriting will executed
Page 50 of 63
subsequently. Will CH disinherited will get inheritance in the earlier
will? NO kasi nga total effect ng disinheritance, pati testamentary
disposition given in prior will is also revoked.
Suppose after executing the disinheriting will, the T executed a 3 rd will
giving the disinherited heir a legacy of 1K. what is the effect of that
legacy? Ano effect? Reconciliation. Pinatawad. Hindi uubra na meja
meja lang ang galit. So when he gave the legacy of 1K. what is the
effect of reconciliation? A922. A subsequent.. .
How do we know whether there is already a reconciliation, that he has
already pardoned the offending CH? It’s a matter of evidence but there
is recon when T had forgiven the offending heir so as to restore him
back to all his rights. E.g. Galit na galit Ron’s daddy kasi suwail at
naging callboy. Ground yan! Dishonorable/disgraceful life (no. 7). What
is dishonorable about that, I’m happy! So lahat tayo as abogado
pwedeng madisinherit. Lawyer and police may be disinherited. Marami
shang kliyente rito ah. Dinishonor sha ng kanyang mother. Baguhin
natin yung ground.
Yung father ni Ron, widower. When wife has been convicted of
concubinage and adultery with father’s . Ron goes to videoke bar.
Tinetable. Takehome later. Nakita ng tatay ni Ron, nainlab tas
pinakasalan. But one night, nahuli ni tatay yung misis in bed with Ron.
Nagkukwentuhan lang po kami. Iba spelling ng kwentuhan nio. Father
filed a case of adultery against ron and his stepmother. Final judgment.
Covered ng probation kasi maliit lang ang kulong jan. So niligawan niya
yung tatay asking for apology. Nako kung ang diyos,
nakakapagpatawad, bahala na ang diyos sayo. Ano tawag sa Tagalog
dun? Bulaklak ng dila. Kasi you want to be polite. Hindi naman
pinapatawad but the words will somehow be polite to the person
asking for forgiveness. It’s a matter of evidence won the offending heir
has been forgiven. It must be of such nature that the T has restored
the offending heir back to all his rights as a CH. Meaning of
reconciliation in A922.
Supposed the disinheritance of Ron was effective. Talagang adultery
with the stepmom. Ron will not get inheritance, so who will get what
he’s supposed to inherit. If he has children, then his legitimate children
takes his place i.e. representation. That’s A923. Eh namana ng anak ni
Ron. Si Ron ang gagamit. But the disinherited parent shall not have
usufruct/administration of property which constitutes the legitime as
well as inheritance.
GROUNDS for CHILDREN
1. Attempt against the life - Found guilty msut be by final jdugemtn.
Unless convicted with finality, presumed innocent for which he
shall not be penalized.
2. Require a formal complaint? How about accusation of crime given
verbally captured by media and aired over by broadcast medium?
E.g. si Gonzales the deputy ombudsman. Binigyan ko nga P150K
yan eh inaccuse of birbery. Sufficient bay an kung ang nag-aaccuse
eh anak? Must there be a formal charge? E.g. nagtestify lang yung
anak sa charge, became inevitable for child to declare under oath
a fact that consitutes an accusation of crime against the father.
Acccusation must be found groundless, who must find that?
Court/official proceeding that will declare accusation groundless.
Nasa comment yan.
3. Nadiscuss na natin yan.
4. Walang problema jan.
5.
6.
7.
8.
Define “maltreatment” is cold treatment? Hindi sinasagot ang
text, phone. Walang hi hello etc. deadma si mommy. Is that
maltreatment? Some writers WON maltreatment viewed from
POV of T kasi sha ang nasasaktan. Pano yung pochero. Is that
maltreatment? Yes sabi ni Baviera. Kaya kapag nagsabi sha ng
gusto niya ng ganito, bigyan niyo na!
To a testator, pwedeng disgraceful ang mga bagay noong unang
panahon e.g. showbiz
Civil interdiction is a penalty imposed by RPC, not SPL. Crimes
committed as penalized in the RPC.
GROUNDS for PARENT
1. Abandonment meaning in FC. 3 months sa FC failed to
communicate or provide support to tell other spouse the
whereabouts. May 3 months ba ditto? Maybe we can use if
there’s definition in the child abuse law. Maybe we cannot use
that as a rule unless show that child abuse law is curative to fill in
gaps. Ibinugaw. Pano kung si Ron ang ibinugaw? May dilemma
tayo jan. under a915, grounds expressly stated by law. Ditto
naman hindi kasali ang son, grandson. Pwede bang lalaki ang
ibugaw? Wala pang kaso yan, but writers say, nagkamali lang kasi
at the time na ginawa ang CC, hindi pa raw uso ang callboy.
Panahon pa ni Alex the Great, Julius Caesar. Yun ay mga
companions lang. even Achilles, he has a relationship with a
cousin. Dun sa Troy sha yung pinatay. Companions of the same
sex nila. Braveheart crown prince. James I, son of Mary Queen of
Scotts, cousin of Elizabeth, sa kanya pinangalan ang KJ version of
Bible. While successor to Elizabeth the 1. Shows my love of
English history. Unheard of daw prostitution of male during time
drafted or promulgated during the law. Ngayon hindi na sha
unheard of. Maybe we should adjust interp of provisions in order
to give life to it. Interpret in a way that will give life to each and
every word. The letter that giveth life, not the interpretation.
Take note that only CH are disinherited. For that disinheritance to be
effective, it has to be done in a valid will.
Suppose Ron remained a bachelor, did not marry. No gf, meron shang
companion. Naubo ka sir. Where a person dies without Ch, who will
inherit from him? As GR legal heirs inherit from him i.e. relatives within
5th degree of ocnsaguinity. Including kaatid, pamangkin, apo sa
pamangkin, great grand children sa pamangkin.
A1
H2
|
B1
C2
D0 (Ron)
|
E3
|
F4
|
G5 – great grand nieces/nephews
SO kung ayaw niya pamanahan si C, pwede kay companion, Boy
Abunda. Who was that FBI director who had a companion. Yung flag
nasa companion. Then he has to make will to anybody of his choice.
Valid yun because he has no CH. A person who has CH may give
everything to anybody o fhis choice. Entire estate is free. Pwede ba
reklamo mga kapatid? Hindi pwede kasi hindi CH.
Suppose ang ginawa lang niya ay
Page 51 of 63
Mejo galit si Ron kay H kasi lagi shang inaasar. Galit ako sa punyetang
yan. So ron made a will with only 1 provision. None of my properties
shall ever go to my brother H. Did not specify a reason. Q: Will the
brother H inherit when Ron dies? No. hindi naman kailangan idisinherit
ang brother kasi CH lang ang dinidisinherit. That is called an
“exclusion”. A legal heir may be excluded from inheritance by the
testator. No ground is necessary, a valid will alone is sufficient to
exclude him from the inheritance. Later on when we reach intestacy,
you will find out who the legal heirs are. May isang heredero jan na di
pwedeng iexclude from his inheritance. We meet again on Wednesday:
Legacies and devises, just read the comments. They are considered as
insituttion (specifically secondary institution of heirs)
Observation: you must have observed that all CH are LH. But not all LH
are CH. The collateral relatives are not CH but they are LH. How do
these LH inherit? Do all of them concur with each other? In the OCC,
the system of intestate succession was one of exclusion. It was not a
system of concurrence. Only one class of heirs will inherit, all the
others will be excluded. Di pwede magsabay ang dalawang classes of
heirs. That was understandable because under OCC, illegitimate
children did not have any successional rights. Neither did the surviving
spouse. SS if at all was entitled to a mere usufruct of the estate of the
deceased spouse should legit children survive. So sino lang LH under
OCC? Only two. LA, LC and collateral relatives within 3rd degree of
consanguinity.
Go straight to intestacy on Wednesday.
Under the NCC, inasmuch as illegit children were given inheritance
rights as well as the surviving spouse. Strict application of exclusionary
rule will be harsh. For this reason, the NCC has tempered the
exclusionary rule by providing for some concurrences of LH. There are
some situations where LH will concur with each other in the
inheritance of the decedent.
22 September 2010
Just to raise our discussion in the proper context, in testamentary
succession, if the testator has no CH, then there are no legitimes to be
impaired. The estate of the testator is free for his disposition. But if
there are CH and CH are instituted, the legitime of the CH are deemed
included in the institution. The excess will be considered chargeable
against the FP. If there are legacies and devises, not inofficious if not
exceed FP. If they exceed, then those legacies have to be reduced.
Hindi inofficious yung term, dapat pang-donations lang yun. If
decedent dies with out a will, then how do we distribute his estate. We
distribute his estate to his legal heirs (LH). When does intestacy occur?
If you will look at NCC, there is no provision which tells us what
intestacy is. There is an enumeration of the cases when intestacy will
occur but there is no definition of what intestacy is. The original draft
of the NCC used by the Code Comission as its working paper has a
definition of intestacy. If my memory is correct, the definition is that
which proceeds when decedent dies without a valid will. Definition
was not adopted by Code Commission because of its being inaccurate.
“Dying without a valid will” that is not accurate because the testator
may have left a will and yet all of his estate shall be distributed by way
of intestacy. When will that happen? Suppose when executed a will
with only one provision i.e. disinheritance of a CH. OR testator left
behind a will but the institutions therein because CH in the direct line
was subject of preterition, all those institutions in the will shall be
allowed and nothing in the will to implement. Therefore the entire
estate of the decedent will be distributed by way of intestacy yet the
decedent left behind a valid will. Because of inaccuracy of definition,
code commission decided not to adopt it.
What do you think is the better definition? Tolentino and other
writers, they simply enumerated instances when intestacy will happen.
A960 four instances when intestate succession shall take place. Is the
enumeration exclusive? NO. There are other instances where intestate
succession takes place. In the absence of a will, who shall receive the
estate of the decedent? The legal heirs. Who are the legal heirs?
1.
2.
3.
4.
5.
6.
7.
8.
Legitimate ascendants
IP
LC and D
Illegitimate children
Surviving spouse
BSNieces Nephews
Other collateral relatives within 5th civil degree of
consaguinity
State
Legitimate ascendants.
If the decedent is survived by nobody but his LA, only the LA are CH.
They are entitled to receive the entire estate. That is their intestate
share in the estate. The entire estate. BUT since LA are also CH, they
will receive the inheritance in two characters. First, in the character as
CH, in the character of legitime. Second one, they will receive the FP. In
the character of intestate share. The intestate share therefore
provided in the law necessarily includes the legitime. Pag ½ of the
entire estate, kasama yung legitime at the same time __________.
ERGO, suppose Ron died and he was survived by nobody ut his
parents, who will receive the inheritance of Ron? His parents. How
omuch? Entire estate. Half of the estate tehey’ll receive as their
legitime, half they will receive by intestate succession. That part
responds to the FP.
Suppose Ron was survived by grandparents and parents. Who are the
LH? Only the parents are the legal heirs. Why? Because we follow a
rule in intestacy that the more remote is excluded by those who are
nearer in degree. In legitimes, legitimes reserved by law for the
legitimate ascendants is divided equally between paternal and
maternal line. The same applies in intestacy. Dinidivide din natin yung
intestate estate equally between maternal and paternal line.
Among the legitimate ascendants, the nearer excludes the more
remote. Suppose the legit ascendants/parents of Ron concur with his
brothers and sisters of Ron. Who are the LH? All of them are LH but not
all of them are entitled to inherit. Nakalista diba? Not all of them will
inherit. Among the LH, we apply rules of intestacy.
What is the first rule? Direct line excludes the collateral. Direct line
yung parents tapos collateral lang brother or sister. Only parents
inherit the entire estate of Ron.
Suppose the legitimate ascendants concur with the legit children of
Ron, who will inherit? Legit asc are excluded by legit desc.
We follow the second rule: Among the relatives in the direct line, the
descending excludes the ascending. Only the legit children will inherit.
What will the legit children receive? The entire estate, to be divided
among themselves equally. Each desc will receive the inheritance in
two characters. The first as his legitime, the 2nd as his share in the FP.
Page 52 of 63
Why do I keep on saying “share in the FP”? in intestacy, you should
know who got the FP because they are responsible for paying the
legacies and devises. Kasi nga lagging sa FP kukunin yun. Pwedeng
magkaron ng legacy and devises kahit na intestacy. E.g. may will pero
nakalagay lang eh legacy and devises tas intestacy na. pay in
proportion of their shares in the FP. Those with bigger part, shall share
a bigger part of the legacy.
½, ¼, ¼ therefore if there are legacies and devises, only the wife is
bound to pay them to the extent of 1/8 FP that she is supposed to
receive by way of intestacy.
Not only are legacies and devises are chargeable against the FP.
Donation inter vivos given during lifetime are chargeable against FP.
This is the reason when the donation exceeded the FP, the donation is
inofficious and must be reduced because there’s no excess in which it
can be charged against.
Illegitimate parents
In the case of legit “ascendnats” pero pag illegit, “parents” lang. kasi
they will be barred by A992.
ALWAYS REMEMBER in INTESTACY: Who received the FP? How much
of the FP was received?
D
Suppose the legit asc concur with illegit children. Who will inherit? It
will not be wise to make the illegit children exclude the legit asc.
Mashadong revolutionary ang reform. Dati rati hindi nagmamana ang
illegit children tas ngayon pati magulang maeexclude na. hindi naman
pwede iexclude ng parents yung anak. Anak pa rin yun. Pero hindi rin
pwedeng parehong rights sila. Babangon si JBL Reyes, sha ang
champion ng gradation of rights of illegit and legit children. lahat ng
doctrinal cases were penned by JBL Reyes. Clemena v Clemena,
Matabuena v Cervantes (donation between common law spouses is
void although there’s no provision in the CC) Enrique Fernando penned
that but cited as authority a decision by JBL Reyes in the CA. San ka
nakakaita ng ganyan? SC decision citing a CA case. Sabi ni JBL, di pwede
pareho ang rights ng illegit at legit. Put premium on legit relationship.
Ano na ngayon ang kanilang intestate share? Legit asc ½ and illegit
children get the other half of the estate. Who got the FP? Nakakuha
ban g FP yung legit asc? Nope. Because their legitime in that
concurrence is ½ of the estate. Eh diba the intestate share also
includes the legitime. What is the legitime of the ilelgit children? ¼ of
estate. Leaving ¼ of the FP. Pero in intestate, magkano nakuha nila, ½
of the estate. Lumaki diba? Kasi nakuha nila lahat FP na ¼. Ergo, pag
may legacy at devises, illegitimate children lang magbabayad nun to
the extent of FP that they received.
In CH, adopted child concurring with legit parents/asc. Will adopted
children exclude the legit parents? YES, that has been decided by the
SC already.
Suppose the legit asc concur with surviving spouse. Who are the LH?
All of them are LH. Will all of them inherit? YES. Ganun din ang
dilemma nila. SS cannot exclude the parents. Dugo pa rin ang
nanay/tatay. Di pwedeng exclude . Win win formula. ½ of estate to LA.
Other half to other ss. In intestacy. The entire estate is distributed
among legal heirs entitled to inherit. To whom does FP go? No.
because their legitime is only ½. Ano ba legitime ni SS in that situation?
1/4 . so ¼ ang remaining sa FP. Mnapupunta lahat yank ay SS.
Suppose the legit asc concur with ss and the illeg children. ano ang
kanilang intestate sharing.
½ legit asc
¼ ss
¼ illegitimate children.
Sino nakakuha ng FP? Nakakuha ba legit asc? Hindi kasi ½ din legitime
nila? Hindi rin illegit children.
Magkano ba FP? 1/8. Kanino napunta itong FP? Surivivng spouse!
Suppose the legit asc concur with BSNN. Excluded no. For the same
reason, legit asc all other collateral relatives and also the state from
the inheritance.
F*
-----|
E
|
A
G*
|
C
B*
* - legitimate relative
A loves B but had extracurricular activities with D. A has child with D
which is recognized. Pumirma.
IF A will die, may E inherit from A? YES. What will he inherit? His
legitime and in case of intestacy, he is entitled to share in the intestate
part. CH and LH sha.
Suppose F dies. Then A dies. Can C inherit from A? Yes. F? Yes. Legit
desc. How about E, may he inherit from F? NO, under A992.
A992: the iron curtain bar. Binigyan ng mana ang illegit children pero
hindi pa rin kinonsider ng batas na sila ay kapamilya ng legitimate
family.  the illegit child is not a member of the legit family of the
illegit parent.
An illegit child cannot inherit “ab intestate” by intestacy from the legit
relatives of his illegit parent. And vice versa. i.e. F, G, B and C cannot
inherit from E.
Because of A992 imposible magkaron ng illegitimate “ascendants”.
There is a situation however where the illegit ascendant will inherit.
E.g. A is also illegit child of B. A has wife and then had an affair.
D
B – illegitimate ascendant
|
---- A C Kiko
|
|
E
Frankie
Sharon is an illegitimate daughter.
D is Gabby, sir’s cousin
B is Mommy Elaine. A is Shawee. E is KC.
Namatay si A and B. E may inherit from mommy Elaine because
mommy Elaine is not a legitimate relative of shawee.
How about Frankie? No, she may not inherit from mommy Elaine.
Sharon is an illegit child. And as an illegit child, she cannot inherit from
the legitimate relatives and neither may legitimate relatives from the
illegitimate child.
Page 53 of 63
MAGULO PO SIR.  Sir retracts. F is still illegitimate as far as B is
concerned. Makakainherit si F. hindi mag-aapply si 992 sa kanya. When
we reach representation, we will discuss why.
Hanggang illegitimate parent lang. walang illegitimate ascendants. The
ascednatns will be barred by A992, the exception is the KC lineage.
Hindi pwedeng bawasan ang legitime ng legit children. dapat laging
buo kaya poprotektahan palagi.
Suppose concur: LC+D and SS
Ang nakalagay sa Code: when the spouse survives with LC, the SS shall
have the same share as that of one legit child or descendant.
Kung pareho pala, dapat para shang anak kung magmamana sha.
IF illegitimate parents concur with legitimate children. Illegit parents
are excluded. LC receive the entire estate. Get the inheritance in two
characters.
Illustration.
Suppose illegti parents concur with illegitimate children, they are also
excluded. Illegit children receive entire estate as their inheritance,
again in two characters.
C
If illegit parents + SS  IP = ½ of estate, SS gets the other half. Who got
the FP? Two of them receive the FP. Sa ganitong combination, ¼ and ¼
sila. Pinaghatian nila ang FP of ½.
Suppose illegit parents concur with BSNN: exclude the collateral they
are latter. Same reason the illegit parent also exclude other collateral
relatives and the estate.
LEGITIMATE CHILDREN
When only legit children survived, then they are the only LH. In case of
intestacy, they get the entire estate as their entire inheritance, shared
equally regardless of marraiage they came from. All children will be at
par with each other, all of them legitimate children. they will receive
inheritance in 2 characters, legitime and share in the FP.
Suppose they concur with the the illegit children, all of them are LH.
They will share the estate in such manner that one illegit child shall
receive half the share of one legitimate child. One illegit child will share
half of one legit child. In all cases, legitimes of the LC shall be
respected.
E.g.
|illegit
CDE
A
|
B
If net estate = 120M
Died intestate. Dapat share nito doble ng share nito.
Listing down who the heirs are:
Heirs
B
C
D
E
Intestate shares
2
1
1
1
5
48
24
24
24
120
Total (new intestate sharing)
60
20
20
20
Divide 120 into 5 parts.
But we’ll have to check if the legitime of legit children has been
impaired i.e. B = ½ E = ½ (120) = 60
So dapat ang makukuha ni B ay not less than 60 so we scratch this and
modify the distrib so B will get 60.
The remaining 60, yun lang ang paghahatian nilang tatlo.
A
|
D
B
E
Net estate is = 120 M
Distribute the estate.
Who are the heirs? All the four are LH.
Magkano ang hatian?
Heirs
C
D
E
B
Intestate shares
1
1
1
1
4
Total (new intestate sharing)
30
30
30
30
120
Ihuli si SS kasi mas mataas ang priority ng legit descendants.
Divide 120/4 = 30
Then check if legitime of legit children was impaired?
LLC = ½ E = ½ (120) = 60
L1LC = 60/3 = 20
Eh nakakuha sha ng 30 so this distribution stands.
BUT suppose only one child.
A
|
C
B
Estate is 120M
How to distribute intestate estate of the husband? If you still
remember in legitimes, the legitime of the spouse varies. From ½ to
1/8. When the SS survives with 1 legitimate child, yung kanyang
legitime nagiging ¼ lang kasi pag pinareho na ½, mawawalang ng FP. In
intestancy, there’s a rule when spouse survives with children. But
there’s no similar rule when spouse survives with only one child. So
how to distribute the estate? If we apply the rule for spouse with
children. ANo magigign hatian jan?
B = ½ E = 60
C = ½ E = 60
Sabi ng ibang writers, this is unfair. Entire porition of ¼ was given to
the SS. Hindi nag-improve yung inheritance ng legit child.
Ano ba gusto niyong hatian?
Give legitimes: B gets 60, C gets 30. 30 yung FP na natira.
1. Jurado: Paghatian yung FP na natira. B gets 75 and C gets 45.
2. Gawin nating pro-rata na 60 30 sila. B is 80 and C gets 40.
3. Senator Padilla (who didn’t want to adopt the changes
introduced by NCC): dapat jan excluded na SS. Ibigay lang sa
kanyang ang legitime, then entire FP goes to child. Apply the
exclusionary rule. B gests 90 and
Page 54 of 63
Magkano yung share received from the FP? 4
Which sharing is correct one? SC has already spoken in Santillon v
Miranda. Hatiin yan ng hati. Yun gprovision of the code which gives the
wife same share as one legit child shall apply. Tag ½ sila. Tolentino
(valedictorian, weightlifting team, upsi, senate president) and Padilla
(salutatorian, basketball team, apb, majority floor leader) were
classmates in this college. Lagi akong di manalo dito kay Padilla, lagi na
lang ako number 2 dito kay Tolentino. Ayun, naunang namatay si
Padilla. Mas maraming asawa si Tolentiono.
When the LC concur with IC and SS: all of them are intestate heirs. How
do we share the inheritance? They will share in such a way that the
surivivng spouse shall get eh same share as one legitimate child and
one illegit child shall get half the share of one legit child.
ILLEGITIMATE CHILDREN survive alone: they get everything BUT must
be recognized proeprly.
Concur with BSNN: BSNN are exluded.
SS survive alone: entire estate goes to him. Sha lang natira. Asawa
lang!
But suppose SS + BSNN: under the law: the SS concurs with BSNN.
SS = ½
BSNN = ½ if there are full/half blood; half blood gets half share of 1 full
blood. Rule in intestacy.
Supposed walang BSNN but concurres with OCR5, who are intestate
heris? Only the spouse. Spouse excludes all OCR5. Spouse concurs
with only one group of legal heirs, i.e. BSNN.
Illustration:
A
|illegit
D
|
C
GR: all CH (any of CH) excludes all the LH,
EXCEPT: SS who concurs with BSNN.
B
Kaya halimbawa, just to be sure that you understood. We have to
illustrate that principle by example.
Estate = 120M
Poor pa ang 120M ngayon. Hindi ka pa mayaman. Wala pang bahay sa
Forbes Pakr. P250M ang isang bahay dun. Ikaw na ang mayaman sir.
Whooosh signal number 4.
Heirs
C
B
D
Intestate shares
2
2
1
5
48
48
24
120
Total (new intestate sharing)
60
48
12
120
Check whether legitime of legit child was impaired? ½ of 120 = 60
Hindi niya nakuha kasi 48 lang. so magkano dapat?
Pano na hahatiin yung remaining 60 between SS and illegit child?
Prefer the SS. Yung natira sa FP, kay SS muna ibigay tas kung ano
matira, kay D na.
In case estate is not sufficient to pay legitime of heirs, illegitimate hier
suffers the reduction.
Illustration: Damihan natin yung anak ni A.
|illegit
FG
A
B
|
CDE
Heirs
C
D
E
B
F
G
Intestate shares
2
2
2
2
1
1
24
24
24
24
12
12
Total (new intestate sharing)
20 – legitime; 4 - FP
20 – legitime; 4 – FP
20 – legitime; 4 – FP
10 – legitime; 2 - FP
Check impairment of legitime =
L lc = ½ of 120 = 60
L 1lc = 60/3 = 20
Since 24 > 20; Distribution has to be respected.
D
C
|
F
|
G
|
A
|
E
-
B
Only B and G survived. What is relationship between A and G?
Grandnephew. Only B will inherit.
Make up class on Friday, same schedule. Very good.
23 September 2010
See notebook for make-up class notes
27 September 2010
Representation as a matter of law?
May a testator provide for representation in favor of his testamentary
heirs? YES, but it’s not called representation, but “substitution” occur
as matter of testamentary provision. But in such case, it’s not
representation, but substitution.
We are now in provisions common to both testate and intestate
succession.
RIGHT OF ACCRETION
What do we mean by accretion? A1015. This is the definition of
accretion among testamentary heirs. There is accretion among those
designated as heirs in the will.
Is there accretion in intestate succession? Yes, A1018
Meron ding accretion in favor of compulsory heirs in A1021. DLC: 1st
par of A1021 is incomprehensible. Parang may kulang.
What is accretion? When the testator instituted or designated 2 or
more persons as heirs to the same inheritance pro indiviso, the share
of one of those heirs who may have [1] predeceased, [2] repudiated or
Page 55 of 63
[3] become incapacitate will go to the other co-heirs. That is called
accretion.
Accretion in the legacy? Yes because testator gave the entire 10M to
the three.
Illustration:
“I institute X, Y and Z to my entire estate.”
Assuming that T has no CH and he died AND assuming XYZ are all alive
at the time of his death. Who will inherit entire estate? XYZ
How will they share? Apply the rule. Equality in the absence of
designation of shares. Tag-wa 1/3 silang lahat.
Pero kung ganito:
“I institute ½ of my 10M bank deposit to A, the other half to B.”
No accretion because not instituted to the same inheritance. They get
different half. It might be pro indiviso, but not the same inheritance.
Change the factual situation. Suppose X predeceased the testator, BUT
despite X having died, testator did not bother to change his will. X was
survived by his own children, ABC. After the death of the testator, who
are entitled to inherit? Will ABC represent X in the inheritance of the
testator? NO because there’s no representation in testamentary
succession. Eh wala ring substitution so ABC cannot inherit either.
Tandaan niyo ito. NO REPRESENTATION IN TESTAMENTARY
SUCCESSION.
If Y is alive, then Y is entitled to inherit. Same goes for Z. Question:
Who gets X’s share? It shall go to Y and Z by accretion.
How will they share? The portion that was supposed to be received by
X? IN equal shares.
Now, suppose the will says:
“I institute to my entire estate: X = ½, Y = ¼ and Z = ¼.”
Z predeceased T. May the heirs of Z represent? No, no representation
in testamentary succession.
Who will now inherit? Who gets Z’s share? To X and Y by accretion.
Because you have to look at A1017. Underline the word “determinate”
… shall not exclude the right of accretion.
Pwede pa ring magkaroon ng accretion. How do they distribution Z’s
share now? They share it 2 is to 1. Get the common denominator. 2/3
go to X and 1/3 go to Y. Add 2 and 1.
2/4 = ½
¼
Kaya may math sa LAE. Because of succession.
New problem:
“I institute x to ½, y to ¼ and z to remaining ¼ of the estate.”
When Z predeceases, will share of Z go to x and y by accretion? NO.
Tell me the difference between the previous and current example.
Ano ba mga requirements for accretion to take place? Heirs must be
instituted to the same inheritance, pro indiviso.
In the first will the phrasing “entire estate” means that testator
intended that the estate go to nobody but the three.
In the second will, not the same inheritance. ½ of X is different from ¼
of Y and Z.
Change the first will: “I institute X, Y and Z to my entire estate such
that x ½, y ¼ and z ¼.”  readily see intention to give estate to nobody
but xyz.
While given aliquot part, we don’t know what properties comprise that
portion.
Another example: “I give ½ of my estate to ABC.”
Will there be accretion in favor of coheirs? Of course, intention is same
inheritance, i.e. the ½
“I institute my 10M bank deposit to X, Y and Z.”
ACCRETION in LEGAL/INTESTATE SUCCESSION – A1018
Comparing 1015 and 1018:
1. 1015 has three scenarios (predeceased, repudiation and
incapacity) Actually incapacity is a catch-all provision.
2. 1018 only repudiation because as GR in legal succession,
there is representation. Therefore, the share of the interstate
heir who predeceased will go to hisown heirs by right of
representation. No right of representation in case of
repudiation.
COMPULSORY SUCCESSION
See 1st par of 1021 – may “only” pa eh.
Why? I don’t understand the “FP given to 2 or more, 1 or more of them
AND a stranger.” I still have yet to come up with a proper
interpretation. Bakit limited lang sa situation na ito?
A
|
BR
|
D
W
C
E
Will: “Entire estate”
1/3 to B
1/3 to C
1/3 to W
Estate – 240 M
B repudiated.
Distribute the estate.
NB since B is aCH, his repudiation applies to both his legitime and his
share in the intestate party. Pero wala dahil nga the entire estate
disposes of it.
Yung ttestamentary part, is that covered by his repudiation? YES,
because unless qualified repudiation, it is total i.e. entire inheritance.
Pede bang partial repudiation? Later go there. As a rule, repudiation is
total.
How did Jurado solve this problem?
HEIRS
Since B
repudiated
B
C
W
1/3 = 80
1/3 = 80
1/3 = 80
Total
0
120
120
40
40
Is there something wrong with this? YES, legitime that is part of what
was repudiated was included. It should go in his own right.
How to do that?
Tanggalin na si B. DANICONCEPCION SOLUTION
HEIRS
Will
Legitimes,
By accretion
Total
Page 56 of 63
C
W
1/3 = 80
1/3 = 80
B
1/3 = 80
considering
B’s
repudiation
120
60 legit, 20 fp
200
W
E
D
20
20
140
100
Provisions respected only if legitimes were not impaired.
Ano ba legitime ni C? ½LC = 120 (eh isa na lang shang anak!) not in
their accretion but in own right. Lumaki legitime ni C.
Wife’s legitime = ¼ E = 60
What was giving B under will is 80. The 1/3 given him is considered
given to a stranger, therefore chargeable againt FP. But since it
impaired legitime, it is reduced. B should have gotten 40. That
becomes a vacant share that goes by accretion to the co-heirs (1018).
Who are the co-heirs in intestacy, C and W. they share alike.
Cannot go accretion, but in their own right. DApat alisin na yung
legitime ni B. Testamentarydisposition is considered as given to
stranger, i.e. chargeable against FP. Napunta sa kanya yung legitime in
his own right and not by accretion.
Coheirs sila kasi entire estate. Kung hindi coheirs, malaaboo sir. 
SUPPOSE WALA SA WILL yung “entire estate”
Walang accretion. To whom 40 goes? It goes to intestacy.
HEIRS
Will
C
W
1/3 = 80
1/3 = 80
B
1/3 = 80
Legitimes,
considering
B’s
repudiation
120
60 legit, 20 fp
200
Intestacy
Total
20
20
140
100
ANOTHER EXAMPLE Lagyan natin ng illegitimate na anak.
A
E
D
|
F Gillegit
|
BR
W
Walang will, intestate tayo ngayon.
A had 2 legit by W an
D predeceased A but survived by own heir F.
HEIRS
Intestate
shares
C
W
2
2
80
80
E
D
1
1
40
40
6
60
60
120
20 FP; 60
legitime
60
60
Reducing,
new
distribution
120
60
30
30; by
representation
(F – 20; G –
10)
300 – Sobra. Di
pwede.
2.
3.
Since intestacy, divide the estate to shares according to
provision of intestacy.
E = 240/6 (number of shares)
Check for legitime. Isang anak nalang si C kasi nagrepudiate si
B. Had B not repudiated, C will only get 60. Tumaas kasi naacquire niya yung additional legitime in his own right.
Nabawasan ng CH. We did not give it to him by accretion but
by operation of law i.e. in his own right. In compliance with
2nd par of 1021.
Para mabayaran ng 120 legitime ni C, we need additional 40.
Where to source it? From the FP. If the FP is not enough,
then reduce from the illegitimate children. NB legitime of ss
is preferred over that of the illegit child. ISSUE: From 80,
nabawasan ang kanyang inheritance by 20.
Another problem.
2
2
Legitimes
So babaan ba natin si Misis? She’s supposed to receive 80. San natin
kukunin yung discrepancy na 40 ni C. It shall come from the FP. Wala
na nga FP. Kukunin natin ngayon sa illegitimate child. Matatangal ang
20 FP ni Misis.
Jurado solution
B
C
80
40
40
Check whether legitimes hae been impaired. LC = 240/2 = 120. Hindi
pwede itong distribution, 80 lang nakuha niya. 120 kasi C acquired in
own right the legitime that was supposed to go to B.
Estate = 240 M
Intestate shares
20
10
10
BUT since D predeceased, to whom will his share go? To his
representative, F.
Suppose D has two children, one legit and another illegit. Kanino
mapupunta ang 30 ni D? Paghatian ni G and F, 2:1.  Hindi ba pareho
sila illegit as far as A is concerned, but they are entitled to get what D is
supposed to inherit. Right to represent is not equal. All authors agreed
on this point. Kailangan half-half rin sila.
C
HEIRS
60
30
30
Wrong ito. Dinistribute niya legitime ni B among other CH by accretion.
DLC opinion: the correct opinion I’m sure. In order to comply with 2nd
par of 1021. Solve this problem like this.
Remove B already.
1.
Coincidence lang na pareho. Pero pag illegitimate child na yung isa,
mag-iiba na yan.
|illegit
2
1
1
8
Distribute B’s
share by
accretion
Total
20
80
A W
|illegit |
C
B
|
Dlegit Eillegit
Page 57 of 63
HEIRS
A
B
W
Z
A left a will
W=½
Z nephew = 10M
B predeceased. So survived by Dlegit and Eillegit.
Estate = 240M
Distribute the estate.
Go to intestacy. May hindi nadispose na kalahati. It goes to the LH. BUT
Should we include wife in the intestate wife when she’s been given
with the ½ estate already? Following Manresa, kasama sha, ½ given to
her applies only to the FP and not the legitime. Pag binigay pa yung
legitime na ¼. Ang natira na lang ay…
Legitimes
120
60
60
Legacy
Institution
0
0
Intestacy
-
X |
Aillegit
Total
210
CAUTION this part.
1. Give legitimes first.
2. Remaining FP is 30M (240-210). Charge two institutions and
legacy. Legacy is preferred over instituted heirs (they only get
the legacy). Donation intervivos DMC is preferred. 10M is
preferred over the ½ institution.
3. According to Manresa. ½ of remaining free portion after
legacy deducted goes to wife. (30M – 10M = 20M)
4. Remaining porition for intestacy. 10M
29 September 2010
Will
Actual
60
10
50
10
Final
60
60
110
10
Free portion = 240 – 180 = 60
Will provision: To complete W's ½, we need 60 more. That 60 more
comes from the FP. Since the FP is only 60, wala na natira sa 10 ni Z.
but between insituttion and legacy, legacy is preferred, so therefore,
you only have to pay the 10, there is a balance of 50, marereduce ang
institution in favor of W.
Manresa solution
HEIRS
B
W
C
Z
Legitimes
60
60
60
210
W
Will
½ estate W
Legacy Z – 10M
Estate = 240
HEIRS
Legitimes
Will
W
A
Z
80
80
40
10
If this
were
intestacy
120
120
Intestate
shares w/
legacy
115
115
10
160
Free portion of 80 (240 – 160)
Remaining free portion after giving W’s ½ and Z’s 10 = 30
30 will be distributed by way of intestacy. In intestacy,do we still give
to W an intestate share when she was already given ½ of the estate.
Concepcion solution to previous diagram.
HEIRS
B
W
C
Z
Legitimes
60
30
30
Will
60
FINAL
60
30
30
10
Estate in the amount of 120M
Nothing is left of the free protion to complete the 60 to bring the
inheritance of W to 60 as specified in the will.
Kung may natira sana, z will be the first to be paid. If wala na natira,
wala na ring maibibigay arising from institution in favor of the wife.
Inheritance of B goes to D only because E is barred.
Ano ang lumalabas dun? Yun lang ang gusto niya ibigay kay W. the rest
therefore should be given by way o fintestacy and the others given to
legal heirs. One interpretation ito.
The other interpretation: After W has been paid, she should also be
included in the intestate part.
If we follow first interpretation, ibibigay natin kay W yung 120, because
that was given to her in the will. Hindi na sha kasali sa distribution of
the balance of the estate. Therefore, Z gets his 10…
W
A
Z
120
110
10
240
Illustration again.
X
|
A
Will
W – ½ estate
Z = 10M
E = 240
W
B
PROBLEM: Bakit yung 10 kinuha lang sa share ni A, bat di kumuha kay
W. Justification: Legacy should first be taken from FP which was not yet
disposed in the will. Hanggang may FP not yet disposed of, all those
legacies shold be taken from those not yet disposed of. So sila yung
mauunang magbabayad. Papakialaman lang ang FP ni W if the FP not
disposed of is not sufficient.
2nd solution – Manresa principle: institutions and legacies are imposed
only on the free portion. After having been paid what was given in the
Page 58 of 63
will, the balance should be available for those given dispositions in the
will.
W
A
Z
120
80
10
240
15
15
135
95
10
3rd solution
Free portion – portion in excess of the legitime. Maraming charges sa
FP e.g. legacies, DIV, institution that exceeds that legitime. The
shortfall between the amount given by will and the legitime is also a
burden on the FP. In such a case, part of FP given by will is already
disposed of. Itong 120 na ito ni W, ang legitime jan ay 80 lang. 40 jan
ay from the FP which has been disposed of. Itong kay 120 ni A (na
babawasan natin ng 10 legacy para kay Z) ay 80 from legitime at 40
from intestacy.
Which is the better solution between the 2? DLC’s opinion, when the
will contains an institution of CH, unless a different intention can be
gathered from the wording of the will, the testator wants to limit or
increase the inheritance of the CH instituted to the amount or aliquot
parts specified in the will. Therefore, number 1 is the better solution.
Give ½, no more no less. The balance of the estate therefore goes to
other LH by intestacy and the heir who was already given the
institution should no longer be considered as the intestate heir.
Listed the legitimes only to find out the FP and to test whether the
impositions in the will impair the legitime.
FP = 360
720/4 = 180
We respect the provision of the will.
B cannot be represented because there’s no representation in
testamentary disposition. Hindi sha entitled to be represented. It’s not
as a compulsory heir anymore because he is instituted as if a stranger.
Accretion na. There is accretion among them because insitutted to
same inheritance pro indiviso.
Will the 60 go to EF? Jurado says no PERO BAKIT?! Representative is
entitled to get whatever the person whom he is representing would
have gotten.
JONI: Since there’s no representatioin in testamentary succession, why
were A and C represented by his children? VERY GOOD POINT!!!
REFORM THE TABLE.
HEIRS
Legitimes
Will
Representation
Accretion
Final
A
120
180 [but 60
E - 60
F - 60
I - 60
J - 60
-
E – 60
F – 60
I – 60
J – 60
480
-
vacant]
C
Justice Jurado’s problem in his Civil Law reviewer:
X had four children, ABCD, with two legitimate childrens each.
EF
BR
GH
120
360
180
180
vacant
120
-
300
-
720
Only the legitime will go to the representatives. Testate part which
goes to …
X
|
A
180 [but 60
vacant]
D
B
LAST PROBLEM:
120
CI
What if intestacy?
D
IJ
HEIRS
Legitimes
Intestate
shares
Representation
A
120
240
C
120
240
D
B
120
360
240
E - 120
F - 120
I - 120
J - 120
240
720
KL
X died, predeceased by A, B repudiated, C was incapacitated and D was
alive, kicking and qualified to inherit.
Will = instituting ABCD to the entire estate.
Left estate worth 720 M, distribute the estate.
Proceed to distribution. Danicon solution.
HEIRS
Legitimes
Will
Representation
Accretion
Final
A
120
180
60
C
120
180
D
B
120
-
180
180
E - 90
F - 90
I - 90
J - 90
180
-
E – 120
F – 120
I – 120
J – 120
240
60
60
-
B is also in the table because there’s an institution but since he
repudiated, it’s considered as given to a stranger.
720/2 = 360
360/3 = 120 (pero kung apat sila) 360/4 = 90 repudiation of B gave
the legitime to other heirs in their own right.
Intestate share is greater than legitime so that has to be respected.
The 240 will go to EF.
B’s part acquired by siblings in their own right, ergo increasing their
legitime.
Is A entitled to be represented by EF? YES, legal sucession kasi yung
buong 720. Acquired by law.
CAPACITY TO SUCCEED
ACCEPTANCE AND REPUDIATION OF THE
INHERITANCE
Heir is not entitled to inherit unless he accepts.
Page 59 of 63
Acceptance may be implied, if heir fialed to repudiate the inheritance
he is considered to have accepted it.
Unless repudiates, he is deemed to have accepted it.
SC decision: Are the legal heirs co-owners of the estate of the
decedent? YES they are co-owners.
When will the co-ownership start? After they have impliedly/expressly
accepted the inheritance. But acceptance retroact to the time of death
of the decedent.
Until they accepted, they do not become co-owners. But when they
accept, their acceptance retroact to time of decedent.
Are the co-owners co-owners of specific property of decedent? NO,
2008/2009 decision. The coheirs are inchoate co-owners of specific
properties. They become co-owners of specific property after all the
liabilities of the estate have been paid. Parang conjugal partnership of
gains. Until the conjugal partnership is dissolved, the spouses are not
yet co-owners. Baka mamaya wala namang natira. Not even enough to
pay liabilities of the partnership.
Coheirs cannot be co-owners of specific properties comprised in the
estate until all liabilities of estate have been paid. Baka naman kasi
kulang pa estate ng decedent so wala rin silang paghahatian.
What shall be added back? Property itself or the value of the property?
only the value of the property. The property itself is not to be returned
because DIV transferred absolute ownership over the properties to the
donees. Whateve rincrease in the value of property was realized in the
meantime shold benefit the donee, i.e. absolute owner.
What value should be added back? At the time donation given or value
at the time of death of the donor? Law is very clear, it is the value of
the property at the time donation was given. Whatever increase in the
value of property was realized shall be for the benfit of donee who was
absolute owner of the property.
Collation may also be understood in the second sense, i.e.
IMPUTATION.
- Donations in favor of CH shall be considered as advances on their
legitimes/inheritance.
- Donations to strangers are imputed to the FP. Chargeable against FP,
if not enough to cover the FP, they may be reduced.
Become owners specific only after laibilites have been paid.
NO problem if testator gave only 1 donation during his lifetime, if the
value excueeded at the time of testator, the donation shall be imputed
to the FP, if FP is smaller than value of donation, the donation is
inofficious to the extent of the shortfall.
Basahin niyo na lang yung capacity to succeed, partition and
distribution. Read the comments of authors whose work I assigned to
you during start of the course.
Kailangan ibalik ang excess to the estate of the donor. Act of returning
is called collation in the third sense, i.e. REDUCTION AND RETURN OF
THE EXCESS.
COLLATION
That’s why when you are reading provisions of CC on collation, analyze
which sense collation is used for that particular provision.
E.g.
A1061 – in the first sense
A1062 – in the seoncd sense; imputation
Maybe exempt from collation in the 2nd sense, not considered as
advance on the legitime but charged on the FP. Donation in favor of a
stranger. Chargeable against free portion.
Understood in three senses. In the first sense, it refers to adding back
to the estate DIV which the decedent may have given during his
lifetime. DIV can become inofficious. In fact donation may be reduced
if inofficious. When will DIV become inofficious? If it exceeds the
amount which the t is allowed to dispose by will. Donations therefore
should be considered in the settlement of the estate of the decedent.
Why? Because if we do not consider donation IV which the decedent
may have given during his lifetime, and in the settlement of his estate,
he can easily circumvent provisions of law on legitimes.
Why? Kasi yung gagawin lang ng decedent to circumvent the legitime,
ipamimigay na lang properties during his lifetime. Sa mga charitable
institutions. Sa mga favorite people like DI, or pwede niyang ibigay sa
favorite na compulsory heirs. E.g. 4 legit children pero isang lang
paborito nung tatay. So before he died, donated all his properties to
the youngest child. May legitime yung 3 anak na mas matanda. How do
we compute their legitimes, the sstate is already 0. ½ of the estate is 0
and dividing it among 4 children is also 0.
There has to be a check on dispositions given gratuitously during
lifetime of the decedent. In the form of collation. Donations added
back to the estate.
May the testator provide in his donation that what was donated
should not be collated to his estate? No, he cannot. Collation in the
first sense is mandatory. Otherwise, it will not serve the prupose for
the law requiring collation. Provide that all those donations are not
subject to donation. DIV therefore are subject to collation. They will be
added back to estate of the decedent.
A1063 – in the second sense; imputation
A1064 – in the second sense; imputation
A1065 – in the second sense; imputation
A1066 – in the second sense; imputation
So whenever you read CC and encounter the word collation, be careful
in characterizing the term to find out in what sense it was used in that
article.
ERGO, how do we compute the estate of the decedent?
SERIES OF STEPS
1. Take an inventory, summation of all assets of the decedents.
Gather together rights and properties left behind by the
testator.
Gross estate =
 of the values of all the assets
Assets include all properties AND rights. Lahat ng may value.
Monetary equivalent.
=
 of the values of all the liabilities
LESS
All liabilites
ADD
______________
Net estate
All DIV subject to collation.
______________
HEREDITARY ESTATE  ESTATE
Include due, not yet due, contingent
Page 60 of 63
PRACTICAL APPLICATION. Suppose Annabel Rama died leaving behind
a box of jewelry with a total market value of P20M. Ipinambato na niya
mga brilyante niya kaya marami na nabawas. May mga utang sha
worth P30M.
Assets
Debts
–
–
20 M
30 M
_____
(-10 M)
DIV
W. Galvan
L. Solis
–
–
C
60
120
(60 leg, 60 fp)
- 5 for X
-20
- 5 for X
95
200
FP = 240 – 120
FP = 120 – 10 M = 110M
May pambayad tayo, saktong sakto lang! P200M
Next meeting, may donation na lalampas sa FP.
4 October 2010
6M
6M
How much is the hereditary estate of Anabelle Rama? P 2M
This is a mechanical application of this process.
Implication? Donation will have to be recovered. Babayaran pa ba
dapat natin yun. DIV given before. Iresearch niyo yan. Next meeting
take the top. Next meeting is the last. Let’s just solve four problems in
collation. Ito bay ay 2M. Or dapat pa bang iconsider na 0 yan, hindi na
babayaran yung utang from DIV. estate will become 12 with donations
all inter vivos. Ibabalit yung donation para bayaran yung legitime ni
Anabelle. Isn’t there something bad about it? May mana sila pero may
unpaid na utang pa rin.
Bakit kukuning ang DIV para bayaran ang mga utang? Bakit naman
natin kukuningang DIV para bayarang ang legitimes of CH when
debtors of estate have not yet been fully paid?
Insofar as the estate is concerned. How do we compute the estate of
the decedent?
1063 is not deemed subject to collation, therefore if a testamentary
disposition is given to CH, the testatementary disposition should not be
considered as an advanced part of his legitime.
Let’s go back to Institution: Suppose T instituted a CH to an aliquot part
of an estate. Is the legitime included part of the institution? Our
opinion: 1063 appleis only to legacies and devises, not institution.
How about if a donation was given to a son of the heir? The heir is a
CH, the donation in favor of grandchild will that be subj to collation in
the first sense? Of course, because that’s a donation. Is it advance on
the legitime of father? No, unless the children inherit by right of
representation. But if they won’t, donation in their favor is considered
donation to a stranger, therefore chargeable against FP. But when
father died ahead of T and children inherit by right of representation,
donation in favor of grandchildren is considered as an advance on the
inheritance of the father whom they are representing in the
inheritance. That’s 1064.
Take up one problem.
Suppose A has two children B and C.
A
|
B
C
Gave donations to:
B = 10 M in 1998 when he ran for mayor in the local elections.
C = 20 M in 2009
X = 10 M in 2009
B
BY THE WAY, All DIV subject to collation. Are there DIV which are not
subject to collation in the first sense? Yes, reasonable donations given
to charity. P5000 sha simbahan. Mderate gifts given to family members
on occasions of family rejoicing or occasion. Sums of money spent by
parent to finish basic education or training for profession.
Distribute the intestate estate.
1. Compute the hereditary estate.
E = GE – L + DIV
= 200 - 0 + 40
= 240
Legitime
B
60
Intestate
shares
120 (60 leg, 60 fp)
Advances
-10
So let’s now illustrate principles through concrete problems.
A
When A died, he left no liabilities. = 0
Estate of 200 M
HEIRS
Yung 1067: not subject to collation in the first and second sense. Hindi
iaadd to the estate, nor will we impute to legitime of the CH.
Ganun din ang 1068. In what sense? 2nd sense; imputation. Hindi
naman maiimpute pero iama natin sa computation. But suppose it
does not impair the legitime? Isasama sa first sense, hindi lang iimpute.
Therefore chargeable to FP.
1069 alam niyo na yan.
The rest are all self-explanatory.
Final
distribution
105
|
W
C
Testamentary provisions.
W = 40M
DIV during lifetime.
B – 10M, 1990
C – 20M, 1998
Z – 10M, 1999 (nephew)
___________
40M
Gross estate = 200M, Liability = 0. Distribute the estate.
A died, survived by his wife and 2 legit children.
Page 61 of 63
E
LC
LC1
= GE – L + DIV
= 200 – 0 + 40
= 240 M
=
½ (240M)
= 120M
= 60M
LC
LC1
While T left a will, it only contained one provision, i.e. legacy in favor of
the wife. It’s not considered as part of the legitime of the wife but
considered as given to a stranger, chargeable against the FP, under
A1063. The rest will be given by intestacy. We’ll only check if the legacy
in favor of wife is inofficious.
HEIRS
B
C
W
Legitime
60
60
60
180
Advances
(10)
(20)
(30)
Will
40
40
Intestate Share
3 1/3
3 1/3
3 1/3
10
Total
53 1/3
43 1/3
103 1/3
200
Check:
FP = 240 – 180
= 60
What are chargeable against the FP? In this order:
1. DIV
2. Legacies and devisees
3. Institution
Kapag naubos ng DIV ang FP, nothing will be paid to the
legatees/devisees.
Among DIV, the first to be made is the first to charge. The last to be
made, should be the last to charge. Therefore, if FP is not enough to
cover all, then only those last to be made shall suffer a reduction.
Are the donations to B and C chargeable against the FP? No, but
chargeable against his legitime. It’s an advance.
Z’s donation
= FP – 10M
= 50
Wife’s 40M = 50 – 40M
Remaining FP = 10
May 200 tayo! So pasok!
Another problem: Intestate naman.
A
|
B
W
= ½ (240)
= 120
= 120/2
= 60
HEIRS
B
Legitime
60
Intestate Share
80 (60 legitime, 20 FP)
C
W
60
60
180
80 (60 legitime, 20 FP)
80 (60 legitime, 20 FP)
Advances
(60
Legitime)
(10 FP)
(10)
Total
10
70
80
160
Since intestate, we give intestate shares first. Distribution
FP
= 240 – 180
= 60 – 10(yung sobra sa advance ni B) = 50
= 50 – 80(donation to X)
= -30
Where do we charge the 70? 60 chargeable against legitime and 10 is
chargeable against the FP. Who will shoulder the 10? DLC: IT should be
divided among the intestate share kaya hindi ko binawas kagad sa 20 ni
B.
Donation to X is inofficious in the amount of 30M.
First view: Ibabawas yung 10 kay B. Therefore, ubos na FP!
HEIRS
B
Legitime
60
Intestate Share
80 (60 legitime, 20 FP)
C
W
60
60
180
80 (60 legitime, 20 FP)
80 (60 legitime, 20 FP)
Advances
(60 Legitime)
(10 FP)
(10)
Total
0
50
60
110
Sina B at X ang umubos ng FP. Meron ba tayong 110M to pay the share
of C and W. Kaso wala tayong pera. Wala kasi yung estate natin ay 80
lang. kulang tayo 30M. Ibabalik ni X yan, collation in the third sense.
Returning back to estate what is in excess of allowed to be given by
will.
The CH in whose favor the donation was inofficious is the only one who
bears the burden.
Second view: Chargeable against all other co-heirs.
HEIRS
B
C
W
Legitime
60
60
60
180
Intestate Share
80 (60 legitime, 20 FP)
80 (60 legitime, 20 FP)
80 (60 legitime, 20 FP)
Advances
(60)
(10)
Total
0
50
60
Pero ganon din yung lalabas sa computation.
C
Estate:
Gross estate = 80M
Liabilities
=0
DIV
B – 70M, 1990
C – 10M, 1992
X – 80M, 1998 (nephew)
____________
160M
Hereditary estate = 80 – 0 + 160
= 240M
Whose FP is it chargeable? Only the CH or all the shares of all those
who received from the FP? DLC says, nakalagay sa batas, legitime lang
eh so excess should be charageable against all those who received in
proportion to their respective shares. Is there any problem with that?
Another example.
Estate:
Gross estate = 140M
Liabilities
=0
DIV
B – 80M, 1990
C – 20M, 1992
___________
Page 62 of 63
100M
Hereditary estate = 240M
1st view solution
HEIRS
B
Legitime
60
Intestate Share
80 (60 legitime, 20 FP)
C
W
60
60
180
80 (60
80 (60
legitime, 20 FP)
Advances
(60 leg)
(20 FP)
(20)
legitime, 20 FP)
Total
0
60
80
140
May pambayad ba tayo? Yes, the gross estate.
Bakit 0 si B? kasi lahat nung 20 chinarge na yung excess sa FP na
tinanggap niya in excess of his legitime.
2nd view solution
HEIRS
B
Legitime
60
Intestate Share
80 (60 legitime, 20 FP)
C
60
80 (60
legitime, 20 FP)
W
60
180
80 (60
legitime, 20 FP)
Advances
60
- 1/3 (20)
20
- 1/3 (20)
- 1/3 (20)
Total
2/3 of 20M
40 + 2/3 of 20M
60 + 2/3 of 20M
100 + 20M
140
Itotal mo lahat. In my view, it has to be against all who received in the
FP, not only against the heir who received the inofficious donation.
DONATION IS INOFFIOUS.
What must the donee return? Must he return the property or just the
value of the property? The law is very clear the donee must return the
value, NOT the very property.
Illustrate: Suppose T during lifetime donated to CH property consisting
of house and lot in Ayala Alabang that time worth 10M but when T
died 20 years later, proprety is already worth 40M or increase in value
from 10-40 by 30M. when estate was computed, what value of
property shall be returned to estate? Value at the time donation was
made. What value shall be added back to estate? 10M
Suppose in the computation of FP and charges against FP that donation
was inofficious by 5M, he has to return half of the 10. What must he
return Half the property or half the value? That makes difference
because if the former, 20M ang irereturn niya. Monetary value lang of
the property, ergo return only 5M. Pagkabayad niya, it’s settled.
Inofficious donation has been returned under the CC.
If there are donations in favor of CH, date is immaterial insofar as value
not exceeding legitime is concerned.
Value of donation not exceeding legitime is always considered
advance.
What becomes material: dates of donation chargeable against FP. As
against FP, the first made is first entitled to charge. Last made last
entitled to charge.
In CH, immaterial yung dates.
Suppose the value of the property had been impaired. When the
property was donated to a 3P, it’s value was 40M but with time, value
of donation dwindled. From 40M, it’s value now has been reduced to
10M. Inofficious yung donation. 20M yung excess that the donee had
to return. Will his return of the property discharge his obligation? May
obligation to pay additional 10M? Yes. Whatever increase in the value
property will be for his account. But the reverse is true, impairment is
also for his account. So magbabalik sha ng 20M even if the value of
property is only 10M. Not required to return the very property but only
the monetary value. He has a choice, sell the property at 10, then
come up with another 10. Heirs may file action for specific
performance.
Not unfair to him because during 20 years, he enjoyed the property for
free.
Another problem:
X |illegitimate |
B
A
W
Will:
A=¼E
B=¼E
W=¼E
DIV:
C nephew
D niece
E friend
F friend
20M, 1990
20M, 1991
20M, 1992
20M, 1993
_________
80M
GE = 160M, L = 0
Divide the estate.
Relevance of the years: First to be made is first to charge. Who among
the donees shall suffer the reduction. Suffer a reduction. Last one is
last ot charge. Kung pangalawa pa lang ubos na, then entire has to be
reduced and return. Don’t take in inflation. Computation of estate
basis of values at time donations were made. If inofficious, return
monetary value as computed, not the property.
Estate
= 160 – 0 – 80
= 240
LC
LW
LIC
= 240/2 = 120
= 60
= 60
Magkabaliktad:
Donations in favor of CH are ALWAYS chargeable unless donation
provides otherwise.
BUT when it’s a legacy, it’s not chargeable against legitime, unless the
will provided otherwise.
HEIRS
A
B
W
FP
Legitime
120
60
60
240
= 240 – 240
Page 63 of 63
=0
mga utang. You will have to have reason for it. I might ask you in the
donation. Go back to donation provision.
All the donations are inofficious. AND they will have to return.
Since no more FP, hindi na rin ihohonor ang will (testamentary
dispositions).
Di rin uubra yung will kasi impaired legitime ni A.
Tanggalin natin si B
X
|
A
W
Suppose T disinherited the heir on that ground but the disinheritance
was ineffective. Will had a problem. Tama na naging ineffective yung
disinheritance but he’s unworthy under 1032, ano sabi ni Tolentino?
The view of Sen. Tolentino is that when a ground for disinheriting an
heir is also a cause for unworthiness, T has a choice of disinheriting OR
doing nothing and let A1032 apply as a matter of course BUT when the
decedent decides to disinherit the heir on that ground but such
disinheritance was ineffective, the heir can no longer be disqualified
under 1032. Waiver daw yun.
20M, 1990
20M, 1991
20M, 1992
20M, 1993
_________
80M
DLC disagrees with Sen. Tolentino. 1032 is a catch-all remedy. Kung
dinisinherit niya at ineffective yung disinheritance, 1032 will apply.
Walang waiver jan kasi matter of law.
GE = 160M, L = 0
Repudiation lang ang walang representation.
There’s representation in incapacity, disinheritance (which is also
incapacity), predeceased.
Divide the estate.
HEIRS
A
W
Legitime
120
60
180
In capacity to succeed, the most important provision is on
unworthiness. Where an hier becomes unworthy, he loses the right to
inherit. He is disqualified. This is A1032.
Grounds which will make an heir incapacitated. This is a matter of law.
But if you look on provisions of code on disinheritance, some causes of
unworthiness are also grounds for disinheritance. Kapag dinisinherit, at
on that same ground but disinheritance was ineffective. Is heir
disqualified under A1032.
Will:
A=¼E
B=¼E
W=¼E
DIV:
C nephew
D niece
E friend
F friend
CAPACITY
Will
120
120 (60 legitime, 60 FP)
Total
120
60
180
E = 240
FP = 60
Who is the first to charge?
FP = 240 – 180
= 60
- 20 for C (abswelto na)
- 20 for D (abswelto na)
- 20 for E (abswelto na)
----0
Pero 180 yung legitime. Yung 160M. So si E ang magbabalik ng 20M
para mabayaran yung legitimes ni A and W.
Annabelle Rama problem last meeting: If we deduct the entire
amount of debts which is less than total number of debts. Then the
negative sum will necessarily be deducted from deduction inter vivos.
Issue I want you to research. Should we pay the debts through the
DIV? Hindi naman nakalagay sa batas diba. Hindi legitime ang utang.
If we do not consider the negative balance and simply add the
donations, then those donations will necessarily become the estate.
Heirs will receive something from estate because the donations shall
be reduced. Bakit tatanggap ang heredero pero hindi babayaran yung
End of the course.
4 hours exam.
Somebody has to prepare 2 bluebooks.
Questionnaire and piece of paper with name.
Passing. Under university code, 70% of maximum possible score.
Therefore, if lower passing mark, it’s purely an act of grace.
Kay Elsa sa office ni sir sa Law Center.