Succession - January 20, 2019
Intestate – succession without a will
- Deed of extrajudicial settlement with partition/sale/waiver of right of share
- sale – if it be sold to another person or stranger who is interested to buy
the property
- partition – if the heirs wanted to partition the land or property
- waiver – the heirs waived their shares to their siblings. (Rule 74 ROC)
*** on the assumption that there is only one heir. The paper that will be procured
is an Affidavit of Self Adjudication
Testate succession- when a person dies leaving a will.
- will is of 2 type (Ordinary and holographic) in another jurisdiction there is
nuncupative or a will that is made orally ( not recognized in our jurisdiction)
- Ordinary will – in the preparation of which the law requires the
lawyer in a notary public. It is a solemn act.
- holographic will – the paper was prepared by the testator or testatrix
without the intervention of notary public. It should be signed and
dated personally by the testator.
*** some of the formal requirements whether ordinary and holographic : sound
mine and 18 years of age.
** Parole evidence – best evidence is the paper itself – when the terms of the
agreement are reduced in writing the best evidence is the writing itself – ( Rule 135
)
*** what about if the will is executed by a citizen of the Philippines abroad- yes,a
citizen of the Philippines anywhere in the world.
*** where should the will be probated ( refers to a court proceeding where the
validity of the will scrutinize ) ?
* Kosher – compliant with the ritual
Extrinsic validity – form
Intrinsic validity – substance/ contents
*** is the will executed valid? Yes- what I the law shall govern upon a will that is
made outside the country? Lex loci celebrationis
The law of the place where the contract is celebrated with regard to extrinsic
validity
*** with regard to intrinsic validity the laws of the Philippines shall apply –
nationality theory (article 16 of Civil Code)
Presumed Death for the purpose of opening his Succession.
A. Ordinary presumption because of ordinary absence.
An absentee who disappears under normal condition, there being no danger
or idea of death shall be presumed dead for the purpose of opening his succession
– at the end of 10 years
- or at the end of 5 years in case he disappeared after the age of 75
B. Extraordinary presumption because of extraordinary or qualified absence.
Under Art. 391 of the Civil Code, qualified absence occurs (qualified or
extraordinary because of great probability of death). The law says that the
following shall be presumed dead for all purposes including the division of the
estate among the heirs:
1.) a person on board a vessel lost during a sea voyage, or on aero plane which is
missing, who has not been heard of for 4 years since the loss of the vessel or aero
plane;
2.) a person in the armed forces who has taken part in war, and has been missing
for 4 years;
3. a person who has been in danger of death under other circumstances and his
existence has not been known for 4 years
Can a criminal convicted of a crime which carriers civil interdictions execute his will?
- Yes, it only prohibits disposition of property inter vivos, not mortis causa.
Article 34. Civil interdiction. - Civil interdiction shall deprive the offender during the
time of his sentence of the rights of parental authority, or guardianship, either as
to the person or property of any ward, of marital authority, of the right to manage
his property and of the right to dispose of such property by any act or any
conveyance inter vivos.
READ PAGE 51 OF THE BOOK
READ PAGE 56 - 60 OF THE BOOK
READ PAGE 65 – 69
TESTAMENTARY POWER – is the statutory right to dispose of property by acts
effective mortis causa (a right given usually as a consequence of ownership and
respect for family relations).
TESTAMENTARY CAPACITY – as used in the new Civil Code is the right to make a will
provided certain conditions are complied with; namely that the testator is not
prohibited by law to make a will; and that the testator is at least 18 years of age;
and the testator be of sound mind at the time of the execution of the will,
soundness of mind being present when the testator knows the nature of the estate
to be disposed of, the proper objects of his bounty, and the character of the
testamentary act.
READ PAGE 100 – 104
READ PAGE 120 – 123
Read page 126 – 127
Art. 41. For civil purposes, the fetus is considered born if it is alive at the time it is
completely delivered from the mother's womb. However, if the fetus had an intrauterine life of less than seven months, it is not deemed born if it dies within twentyfour hours after its complete delivery from the maternal womb.