Succession Midterms Reviewer
Succession Midterms Reviewer
Succession Midterms Reviewer
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I. GENERAL PROVISIONS A. Definitions Concept of Succession 1. Transmission of property, rights and obligations of a person to subrogate put one person in the place of another; substitution of the deceased person by a living person in all transmissible property and juridical relations 2. Universality or entirety of the property, rights and obligations transmitted by any of the forms of succession admitted in law 1. SUCCESSION - mode of acquiring ownership; the inheritance of a person is transmitted either according to his express will and words or as provided for by law; legal mode by which inheritance is transmitted. a. DECEDENT/TESTATOR person whose property is transmitted through succession b. HEIR - anyone who succeeds to the whole or portion/fraction of the inheritance; continuation of the personality of the deceased. Kinds of Heirs 1. Compulsory those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance. 2. Voluntary/testamentary instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose; right to succession depends entirely upon the will. 3. Legal/intestate when theres no will. c. LEGATEE/DEVISEE given a gift of personal (legatee) and real (devisee) property; determinate or individualized thing or quantity Why is distinction between heirs and devisees/legatees important? In case of preterition (exclusion of compulsory heirs in a will), heirs will be annulled and d/l will be respected. d. PROBATE judicial declaration of validity of will. (Balus v. Balus; J. Peralta 2010) The rights to a persons succession are transmitted from the moment of his death. Inheritance consists of the property and transmissible rights and obligations existing at the time of his death, as well as those which have accrued thereto since the opening of the succession. Thus, in the eyes of the law, the disputed lot no longer formed part of the estate because Rufo lost it in his lifetime and did not pass into the hands of petitioner and respondents as compulsory heirs of Rufo at any given point in time. 2. INHERITANCE mass or totality of the patrimony of the deceased person; includes all property, rights and obligations not extinguished by death of decedent
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- intransmissible by express agreement or by will of testator - intransmissible by express provision of law (life pensions) 3. VESTING OF SUCCESSION RIGHTS Death of a person vests succession rights; consolidates and renders immutable, in a certain sense, rights up to that moment were nothing but mere expectancy; rights which do not acquire any solidity and effectiveness except from the moment of death 2 Things to Consider: 1. Origin of existence of right - may be the will of the testator or the provisions of the law 2. That which makes the right effective death of the person - Rights is always deemed to retroact at the moment of death; right of the State to collect inheritance tax accrues at the moment of death (value of property at time of death) Elements of Transmission 1. Express will of the testator / provision of law 2. Death of decedent 3. Acceptance of inheritance Presumption of Death 1. Generally 10 years; if 75 years old 5 years (Art. 390) 2. Special circumstances (on board vessel lost during sea voyage, armed forces in war, in danger of death) 4 years (Art. 391) (Uson v. Del Rosario) The provisions of the NCC shall be given retroactive effect even though the event which gave rise to them may have occurred under the prior legislation only if no vested rights are impaired. Hence, since the right of ownership of Maria Uson over the lands in question became vested in 1945 upon the death of her late husband, the new right recognized by the new Civil Code in favor of the illegitimate children of the deceased cannot, therefore, be asserted to the impairment of the vested right of Maria Uson over the lands in dispute. (Borja v. Borja) As a hereditary share in a decedent's estate is transmitted or vested immediately from the moment of the death of such causante or predecessor in interest (Civil Code of the Philippines, Art. 777) there is no legal bar to a successor (with requisite contracting capacity) disposing of her or his hereditary share immediately after such death, even if the actual extent of such share is not determined until the subsequent liquidation of the estate. (Bonilla v. Barcena) Article 777 of the Civil Code provides "that the rights to the succession are transmitted from the moment of the death of the decedent." From the moment of the death of the decedent, the heirs become the absolute owners of his property, subject to the rights and obligations of the decedent, and they cannot be deprived of their rights thereto except by the methods provided for by law. The
II. PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION A. Right of Accretion 1. Def: Accretion right by virtue of which, when two or more persons are called to the same inheritance, devise or legacy, the part assigned to the one who renounces or cannot
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receive his share, or who died before the testator, is added or incorporated to that of his co-heirs, co-devisees, or colegatees. Basis of Right - Presumed will of the decedent; When a testator leaves one specific thing to two or more persons, without express designation of shares, undoubtedly he gives to these persons a preference over the thing given. Naturally, when one of them repudiates or is incapable of succeeding, the vacant share is given to the co-participants Contrary Will of Testator - Testator can expressly provide that there shall be no accretion; testator can provide for accretion in a case where no accretion would take place under the provisions of the law Repudiation st 1 view Heir cannot repudiate share that goes to him by right of accretion; inheritance is a juridical unit and cannot be considered as divided into parts. nd 2 view distinction should be made between testate and intestate succession Testamentary heir can renounce accretion and accept his part because personal portion and the portion which accrues are two different parts Intestate accretion is compulsory in nature such that none of the heirs can accept his own portion and renounce the vacant portion (Manresa) equitable solution is to give heirs option (Scaevola) Accretion is a right not an obligation. It would be converted into a cumbersome obligation if co-heirs were not given the right to renounce when a vacant portion occur. The right of accretion is voluntary not compulsory. * Right of representation when heir predeceased testate, his heir accretes. 2. Requisites a. Unity of Object and Plurality of Subjects - Subjects must be called to the same inheritance jointly, in the same will and under same testamentary disposition, without the testator making a distribution of shares * When the institution is made in unequal parts, there will be no accretion; The difference in the quotas indicates the intention of the testator to limit the right of each heir exclusively to the part to which he is instituted (Scaevola) * For accretion, it is enough that from the language used by the testator, it can be inferred that he has no intention to make a division, materially or in aliquot parts, of the inheritance or property. 2. One of the heirs designated dies before the testator, or renounces the inheritance, or is incapable to receive it includes non fulfilment of suspensive condition imposed
[C Z (1)]
(1) Testator appoints substitute (2) Testator provides expressly in will that there wont be accretion e. If no accretion (testamentary succession) the vacant portion of the instituted heirs shall pass to the legal heirs of the testator. (1022) B. Capacity to Succeed 1. Requisites a. General civil capacity b. No incapacity/prohibition to succeed (1024) * Requisites should be present at the time of death and/or time of condition
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Types of Incapacity: 1. Absolute (per se) 2. Relative (per accidens) disqualification only with respect to specific persons/property * Heir, devisee or legatee should be living at the moment succession opens. A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in article 41. (1025) * The State, provinces, municipal corporations, private corporations, organizations or associations for religious, scientific, cultural, educations or charitable purposes may be testate heirs (1026). When would a corporation have juridical capacity? At the time it gets Certificate of Registration from SEC * BUT there are certain corporations prohibited by law to succeed (ex. Law, charity vested with public interest) * FOR PRAYERS AND PIOUS WORK- if general terms and without specifying its application, the executor, with the court's approval shall deliver one-half thereof or its proceeds to the church or denomination to which the testator may belong, to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Article 1013. (1029) *FOR POOR IN GENERAL - deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. Who shall designate who are to be considered poor? 1. One appointed by testator 2. Executor 3. Justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. *The approval of the Court of First Instance shall be necessary. (Parish Priest of Victoria v. Rigor) Capacity to succeed is determined at the time of death of the testator.
B. Interposition (1031) Testator institutes A as heir; he has an agreement with A to give inheritance to B; means to skirt Art. 1032 - disguising a disposition in a form of contract ground to challenge by other heirs Is it valid if the one transferred to takes the property? Tolentino: YES, valid if given; Testator ran the risk Balane: No, contact is void. C. Relationship (1027) P G T R A P 1. Priest/minister of gospel who extended spiritual aid 2. Guardian (unless descendant. Ascendant, brother, sister or spouse) 3. Those not permitted by law th 4. Relatives of priest (with 4 degree) 5. Attesting witness + spouse, parents, children 6. Physician, surgeon, nurse, health officer or druggist (during last illness) Balane: What has to be proved is relationship; concept of influence is presumed D. Unworthiness (1032) C H A P F A G 1. Convicted of an attempt against life of testator, spouse, descendants, ascendants 2. Heir (of full age) who failed to report violent death of testator within a month. Unless the authorities have already taken action; Not applicable to cases wherein, according to law, there is no obligation to make an accusation2. 3. Abandoning parents; induced daughters to lead corrupt or immoral life; attempted against virtue 4. Prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will 5. Fraud, violence, intimidation, or undue influence to cause the testator to make a will or to change one already made 6. Falsifies or forges a supposed will of the decedent. 7. Adultery or concubinage with the spouse of the testator 8. Groundlessly accused testator of crime penalized by 6 years imprisonment or more 3. Pardon * Pardon in writing or knowledge at time of death shall cause unworthiness to be without effect (1033)
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2. Grounds for Incapacity to succeed V I R U Void Donation Interposition Relationship Unworthiness A. Void Donations on the grounds of public policy 1. Adultery 2. Same criminal offense 3. Public officer, wife, descendants; by reason of his office (1028)
IMPLIED PARDON If testator knows of such unworthiness but designates him/her nonetheless. although not a given: mere silence is not sufficient to constitute implied pardon; prove that testator know of unworthiness and there was some kind of disposition 4. Effects a. Children/descendants of incapacitated child/descendant of the testator shall acquire right to legitime. Person
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excluded shall not enjoy usufruct and admin of property inherited by children (1035) If unworthy is entitled to a legitime (a son)
LEGITIME (SACRED)
FREE PORTION
if free portion remains, it will be subject to intestate succession (divide with other compulsory heirs) b. Alienations and acts of admin by excluded heir shall be valid as to third persons who acted in good faith if performed before judicial order of exclusion but the co-heirs shall have a right to recover damages from the disqualified heir (1036). c. Unworthy heir has a right to demand indemnity or necessary expenses incurred and to enforce such credits as he may have against estate (1037) 5. Restitution Excluded heir who took possession of hereditary property shall return the same with accessions. He shall be liable for fruits and rents received or could have received through exercise of due diligence (1038). similar to possessor in bad faith; heir should make accounting first and be reimbursed of expenses 6. Governing Law Capacity to succeed is governed by the law of the nation of the decedent (1039). (Cayetano v. Leonidas) As regards intrinsic value of the will, the national law of the decedent must apply 7. Prescription 5 years from possession (not time of death) action to declare incapacity and recovery of inheritance (1040).
Voluntary Acts * Heir has the freedom to accept or repudiate inheritance because the act only prejudices the heir himself. This follows the principle that rights granted by law may be waived, provided such waiver is not contrary to public morals. * Violence, intimidation, undue influence, error and deceit will defeat effects. Partial Acceptance * Not allowed by the Old Civil Code because it places uncertainty to transmission of rights by succession. (Sanchez Roman) The will of the testator should be respected by the will of the heir because it is more fundamental and preferred but both should concur to perfect the relation. (Manresa) Heir cannot be permitted to continue the personality of the decedent or represent him in fraction. All or nothing. * Partial acceptance is now allowed: - (Indivisibility argument) Heir in the law is no longer a continuation of the personality of the deceased; same footing as that of the legatee - (Prejudice to creditors) Creditors of the estate must be paid first Retroactive Effect *The effects of the acceptance or repudiation shall always retroact to the moment of the death of the decedent (1042). * To retroact at the time of death of the decedent; will of the heir to take inheritance is made simultaneous to the death of the decedent. (Continuity of ownership should not suffer) *Old Civil Code prohibits acceptance or repudiation with a term or condition (distinguished from power of testator to designate day and time to effect institution of heir) as violative of the law. To allow acceptance/repudiation with a term or subject to a condition would be contrary to the principle that there should not be hiatus or gap even for a moment. It would also be inconsistent with the irrevocable character of acceptance or repudiation. 2. Requisites Requisites of Acceptance (1043) 1. Certainty of death Will of man is changeable The person who accepts or repudiates an inheritance from a living person cannot know whether he will survive or predecease the decedent or whether he will have the capacity to succeed in the latters succession 2. Certainty of his rights to the inheritance Ineffective if heir knows that will is null and void or when he is not sure whether there are certain relatives nearer in degree or when he is unsure if he was instituted. 3. Capacity
C. Acceptance and Repudiation of Inheritance 1. In General Acceptance person called to succeed by universal title either by the testator or by law manifests his will of making his own the universality of the rights and obligations which are transmitted to him Repudiation manifestation of such heir of his desire not to succeed to the said universality. * No person can be forced to take any property through inheritance. It should be a voluntary act (1041)
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Capacity to Accept * Persons having the capacity to succeed but not having the capacity to dispose of their property may not accept or repudiate but legal representatives (parents/executors) may do so for them. *Acceptance presupposes not only rights but also obligations; Repudiation means alienation Court intervention would not be necessary if act is purely beneficial to the minor or incapacitated person. BUT intervention should be obtained where the institution is subject to a charge or condition to be performed by a minor/incapacitated. Judicial affirmance is always necessary for repudiation (because it amounts to alienation) Institution of the poor in general can only accept not repudiate BUT the individuals who may be selected as poor have the freedom to accept or repudiate the property or portion that may be given to them. *Corporations/associations - judicial approval is needed in repudiating because of the public interest imbued in these institutions (1045). *Public Official Establishments cannot accept or repudiate an inheritance without government approval (1046). Public establishment organizations which have their own social and public purpose separate from the mere manifestation of the governmental functions of the State (ex. Public universities, libraries and archives). It is indispensable that the organizations must have a distinct public service to fulfill and performs successive acts to realize it. The approval may be given by the head of the department to which the public establishment belings or is subordinated. *Married women may accept/repudiate without consent of husbands (1047) * Deaf-mutes can read and write may accept/repudiate personally or through an agent; cannot read and write accepted by guardians. Judicial approval needed (1048). 4. Forms of Acceptance 1. Express must be in public or private document 2. Tacit resulting from acts by which the intention to accept is necessarily implied/ which one would have no right to do except in the capacity of an heir * acts if mere preservation/provisional administration is not acceptance if title or capacity of an heir has not been assumed (1049). When deemed accepted (1050): R O F S 1. Renounces it for the benefit of one or more heirs - involves a cession, an act of disposition 2. Others - Can be inferred from other acts; demands partition of the inheritance, or when he alienates some objects of the
5. Manner of Repudiation (1051) a. Public/authentic instrument b. Petition to court having jurisdiction Formality of Repudiation The acceptance of an inheritance confirms the transmission of the right of succession while repudiation makes transmission ineffective (more violent and disturbing consequences) * The publicity of repudiation is needed for the benefit of the creditors and the public interest; opens the way for other heirs Authentic Instrument Sanchez-Roman & Valverde: authentic refers to document distinct and apart from a public or notarial instrument. Authentic instrument is one whose genuineness is admitted or clearly proved
6. Effects of Repudiation a. Repudiation by Heir to the prejudice of creditors Creditors may petition court to authorize acceptance of inheritance. Benefit shall only be to an extent sufficient to cover credits excess shall be adjudicated to persons whom it may belong (1052). Acceptance by Creditors * co-heirs benefit by receiving more property, creditors are prejudiced Acceptance shall benefit in so far as it covers the amount of their credits; excess shall be adjudicated to person it may pertain to
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Requisites: 1. There must be repudiation by the heir-debtor in legal form which is valid in law 2. There must be credits existing against the heir who repudiates 3. Judicial authorization must be obtained before the creditors may accept for the debtor 4. Act of repudiation prejudices claims of creditors * Acceptance by creditor does not annul or revoke the repudiation made by the heir, it rescinds to an extend sufficient to protect the interest of the creditors. b. If heir dies without accepting or repudiating right shall be transmitted to his heirs (1053) c. Several heirs some may accept and others may repudiate (1054) d. Heir in two capacities - Intestate heir repudiates inheritance in his capacity as testamentary heir, presumed to have repudiated in both capacities but NOT vice versa (1055) When an heir who is such by will repudiates, he shows his dislike to become heir in any concept whatever The repudiation of the express will of the testator includes that of a presumed will, but the repudiation of the latter still leaves the express will open to respect. d. Acceptance/ repudiation is irrevocabla and cannot be impugned expect when consent is vitiated or when an unknown will appears (1056). Irrevocability of Inheritance - would lead to confusion and serious results; results in disturbance in rights already vested and may lead to instability of juridical relations Exceptions: 1. When the acceptance or repudiation suffers from any of the vices which annul consent (mistake, error, violence, intimidation, undue influence and fraud) 2. When an unknown will appears Effect of Mistake - error must not be due to negligence of the heir; should be based on facts and circumstances which the heir could not have known notwithstanding due diligence on his part Effect of Violence and Intimidation - violence (external acts imposed upon the heir to accept or repudiate) and intimidation (works internally in the mind forcing him to accept or repudiate) removes effect of repudiation/acceptance Effect of Fraud rd - must be practiced by a 3 person; must be serious and must consist of insidious words or machinations without which the heirs would not have accepted or repudiated
Distinguished from Waiver of future inheritance All things which are not outside the commerce of men, including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of contracts. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy may likewise be the object of a contract. (1347)
III. TESTAMENTARY SUCCESSION A. Wills 1. Def: An act where a person is permitted to control the disposition of estate to take effect after his death (783) (Vitug v. CA) Will is a personal, solemn, revocable and free act by which a capacitated person disposes of his property and rights and declares or complies with duties to take effect after his death. The bequest or device must pertain to the testator. The monies subject of savings account were in the nature of conjugal funds. A survivorship agreement is simply their joint holdings not a delivery of one party's separate properties in favor of the other, but simply, their joint holdings. A survivorship agreement is an aleatory contract whereby one of the parties or both reciprocally bind themselves to give or do something as an equivalent for that which the other party is to give or do in case of the occurrence of an event which is uncertain or will happen at an indeterminate time. There is no showing that the funds exclusively belonged to one party, and hence it must be presumed to be conjugal, having been acquired during the existence of the marita. relations. 2. Characteristics a. Purely personal
Art. 784. The making of a will is a strictly personal act; it cannot be left in whole or in part of the discretion of a third person, or accomplished through the instrumentality of an agent or attorney (784). (670a) Art. 785. The duration or efficacy of the designation of heirs, devisees or legatees, or the determination of the portions which they are to take, when referred to by name, cannot be left to the discretion of a third person. (670a) Art. 787. The testator may not make a testamentary disposition in such manner that another person has to determine whether or not it is to be operative. (n) b. Free and intelligent
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Art. 839. The will shall be disallowed in any of the following cases: (1) If the formalities required by law have not been complied with; (2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its execution; (3) If it was executed through force or under duress, or the influence of fear, or threats; (4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of some other person; (5) If the signature of the testator was procured by fraud; (6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (n) c. Solemn and formal
Art. 828. A will may be revoked by the testator at any time before his death. Any waiver or restriction of this right is void. (737a) e. Mortis causa
Art. 777. The rights to the succession are transmitted from the moment of the death of the decedent. (657a) f. Individual
Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) Art. 805. Every will, other than a holographic will, must be subscribed at the end thereof by the testator himself or by the testator's name written by some other person in his presence, and by his express direction, and attested and subscribed by three or more credible witnesses in the presence of the testator and of one another. The testator or the person requested by him to write his name and the instrumental witnesses of the will, shall also sign, as aforesaid, each and every page thereof, except the last, on the left margin, and all the pages shall be numbered correlatively in letters placed on the upper part of each page. The attestation shall state the number of pages used upon which the will is written, and the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses, and that the latter witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. If the attestation clause is in a language not known to the witnesses, it shall be interpreted to them. (n) Art. 806. Every will must be acknowledged before a notary public by the testator and the witnesses. The notary public shall not be required to retain a copy of the will, or file another with the Office of the Clerk of Court. (n) Art. 807. If the testator be deaf, or a deaf-mute, he must personally read the will, if able to do so; otherwise, he shall
Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) g. Executed with animus testandi
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Art. 796. All persons who are not expressly prohibited by law may make a will. (662) Art. 797. Persons of either sex under eighteen years of age cannot make a will. (n) Art. 798. In order to make a will it is essential that the testator be of sound mind at the time of its execution. (n) Art. 799. To be of sound mind, it is not necessary that the testator be in full possession of all his reasoning faculties, or that his mind be wholly unbroken, unimpaired, or unshattered by disease, injury or other cause. It shall be sufficient if the testator was able at the time of making the will to know the nature of the estate to be disposed of, the proper objects of his bounty, and the character of the testamentary act. (n) Art. 800. The law presumes that every person is of sound mind, in the absence of proof to the contrary. The burden of proof that the testator was not of sound mind at the time of making his dispositions is on the person who
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opposes the probate of the will; but if the testator, one month, or less, before making his will was publicly known to be insane, the person who maintains the validity of the will must prove that the testator made it during a lucid interval. (n) Art. 801. Supervening incapacity does not invalidate an effective will, nor is the will of an incapable validated by the supervening of capacity. (n) Art. 802. A married woman may make a will without the consent of her husband, and without the authority of the court. (n) Art. 803. A married woman may dispose by will of all her separate property as well as her share of the conjugal partnership or absolute community property. (n) i. j. Unilateral Dispositive disposes of property
Art. 793. Property acquired after the making of a will shall only pass thereby, as if the testator had possessed it at the time of making the will, should it expressly appear by the will that such was his intention. (n) Art. 794. Every devise or legacy shall cover all the interest which the testator could device or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest. (n) Rabadilla v. CA (Purisima) Seangio v. Reyes (Azcuna) A holographic will must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. Alfredos disinheritance is an act of disposition in itself. In other words, the disinheritance results in the disposition of the property of the testator Segundo in favor of those who would succeed in the absence of Alfredo. The intent or the will of the testator, expressed in the form and within the limits prescribed by law, must be recognized as the supreme law in succession. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect. Holographic wills should be construed more liberally than the ones drawn by an expert, taking into account the circumstances surrounding the execution of the instrument and the intention of the testator. Unless the will is probated, the disinheritance cannot be given effect. There was no preterition. Segundos last expression was to bequeath his estate to all his compulsory heirs, with the sole exception of Alfredo. Also, Segundo did not institute an heir to the exclusion of his other compulsory heirs. The mere mention of the name of one of the petitioners, Virginia, in the document did not operate to institute her as the universal heir. Her name was included plainly as a witness to the altercation between Segundo and his son, Alfredo. Dizon-Rivera v. Dizon (Teehankee) "the intention and wishes of the testator, when clearly expressed in his will, constitute the fixed law of interpretation, and all questions raised at the trial, relative to its execution and fulfillment, must be settled in accordance therewith, following the plain and literal meaning of the testator's words, unless it clearly appears that his intention was otherwise." (Villanueva v. Juico). 4. Law Governing Form Art. 795. The validity of a will as to its form depends upon the observance of the law in force at the time it is made. (n)
3. Construction and Interpretation Art. 788. If a testamentary disposition admits of different interpretations, in case of doubt, that interpretation by which the disposition is to be operative shall be preferred. (n) Art. 789. When there is an imperfect description, or when no person or property exactly answers the description, mistakes and omissions must be corrected, if the error appears from the context of the will or from extrinsic evidence, excluding the oral declarations of the testator as to his intention; and when an uncertainty arises upon the face of the will, as to the application of any of its provisions, the testator's intention is to be ascertained from the words of the will, taking into consideration the circumstances under which it was made, excluding such oral declarations. (n) Art. 790. The words of a will are to be taken in their ordinary and grammatical sense, unless a clear intention to use them in another sense can be gathered, and that other can be ascertained. Technical words in a will are to be taken in their technical sense, unless the context clearly indicates a contrary intention, or unless it satisfactorily appears that he was unacquainted with such technical sense. (675a) Art. 791. The words of a will are to receive an interpretation which will give to every expression some effect, rather than one which will render any of the expressions inoperative; and of two modes of interpreting a will, that is to be preferred which will prevent intestacy. (n) Art. 792. The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions, unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made. (n)
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Art. 815. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines. (n) Art. 816. The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes. (n) Art. 817. A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines. (n) Art. 819. Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed. (733a) 5. Joint Wills Art. 818. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person. (669) (Dela Cerna v. Potot) The validity of the joint will, in so far as the estate of the wife was concerned, must be, on her death, reexamined and adjudicated de novo, since a joint will is considered a separate will of each testator. Therefore, the undivided interest of Gervasia should pass upon her death to her heirs intestate, and not exclusively to the testamentary heir, unless some other valid will in her favor is shown to exist, or unless she be the only heir intestate of said Gervasia. 6. Testamentary Capacity Ortega v. Valmonte (Panganiban) Fraud is a trick, secret device, false statement, or pretense, by which the subject of it is cheated. It may be of such character that the testator is misled or deceived as to the nature or contents of the document which he executes, or it may relate to some extrinsic fact, in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made. Sound mind: (1) the nature of the estate to be disposed of, (2) the proper objects of the testators bounty, and (3) the character of the testamentary act. Despite his age, he was still able to identify accurately the kinds of property he owned, the extent of his shares in them and even their locations. As regards the proper objects of his
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used therein shall not render the will invalid if it is proved that the will was in fact executed and attested in substantial compliance with all the requirements of Article 805. (n) vi. Witnesses Art. 820. Any person of sound mind and of the age of eighteen years or more, and not bind, deaf or dumb, and able to read and write, may be a witness to the execution of a will mentioned in Article 805 of this Code. (n) Art. 821. The following are disqualified from being witnesses to a will: (1) Any person not domiciled in the Philippines; (2) Those who have been convicted of falsification of a document, perjury or false testimony. (n) Art. 822. If the witnesses attesting the execution of a will are competent at the time of attesting, their becoming subsequently incompetent shall not prevent the allowance of the will. (n) Art. 823. If a person attests the execution of a will, to whom or to whose spouse, or parent, or child, a devise or legacy is given by such will, such devise or legacy shall, so far only as concerns such person, or spouse, or parent, or child of such person, or any one claiming under such person or spouse, or parent, or child, be void, unless there are three other competent witnesses to such will. However, such person so attesting shall be admitted as a witness as if such devise or legacy had not been made or given. (n) Art. 824. A mere charge on the estate of the testator for the payment of debts due at the time of the testator's death does not prevent his creditors from being competent witnesses to his will. (n)
Art. 804. Every will must be in writing and executed in a language or dialect known to the testator. (n) (Roxas v. De Jesus) The underlying and fundamental objectives permeating the provisions of the law wills consists in the liberalization of the manner of their execution with the end in view of giving the testator more freedom in expressing his last wishes, but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. If a Will has been executed in substantial compliance with the formalities of the law, and the possibility of bad faith and fraud in the exercise thereof is obviated, said Will should be admitted to probate (Rey v. Cartagena 56 Phil. 282). If the testator, in executing his Will, attempts to comply with all the requisites, although compliance is not literal, it is sufficient if the objective or purpose sought to be accomplished by such requisite is actually attained by the form followed by the testator. As a general rule, the "date" in a holographic Will should include the day, month, and year of its execution. However, when as in the case at bar, there is no appearance of fraud, bad faith, undue influence and pressure and the authenticity of the Will is established and the only issue is whether or not the date "FEB./61" appearing on the holographic Will is a valid compliance with Article 810 of the Civil Code, probate of the holographic Will should be allowed under the principle of substantial compliance. (Labrador v. CA) The law does not specify a particular location where the date should be placed in the will. The only requirements are that the date be in the will itself and executed in the hand of the testator. (Gan v. Yap) The New Civil Code effective in 1950 revived holographic wills in its arts. 810-814. "A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form and may be made in or out of the Philippines, and need not be witnessed." This is a radical departure from the form and solemnities provided for wills under Act 190, which for fifty years (from 1901 to 1950) required wills to be subscribed by the testator and three credible witnesses in each and every page; such witnesses to attest to the number of sheets used and to the fact that the testator signed in their presence and that they signed in the presence of the testator and of each other. Authenticity and due execution is the dominant requirements to be fulfilled when such will is submitted to the courts for allowance. For that purpose the testimony of one of the subscribing witnesses would be sufficient if there is no opposition (Sec. 5, Rule 77). If there is, the three must testify, if available. From the testimony of such witnesses (and of other additional witnesses) the court may form its
b. Holographic Will A holographic will can be in any form as long as the intent to dispose is clearly shown. i. General Requirements Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed by the hand of the testator himself. It is subject to no other form, and may be made in or out of the Philippines, and need not be witnessed. (678, 688a) Art. 811. In the probate of a holographic will, it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three of such witnesses shall be required. In the absence of any competent witness referred to in the preceding paragraph, and if the court deem it necessary, expert testimony may be resorted to. (619a)
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opinion as to the genuineness and authenticity of the testament, and the circumstances its due execution. With regard to holographic wills, no such guaranties of truth and veracity are demanded, since as stated, they need no witnesses; provided however, that they are "entirely written, dated, and signed by the hand of the testator himself." In the probate of a holographic will" says the New Civil Code, "it shall be necessary that at least one witness who knows the handwriting and signature of the testator explicitly declare that the will and the signature are in the handwriting of the testator. If the will is contested, at least three such witnesses shall be required. In the absence of any such witnesses, (familiar with decedent's handwriting) and if the court deem it necessary, expert testimony may be resorted to." The witnesses need not have seen the execution of the holographic will, but they must be familiar with the decedents handwriting. Obviously, when the will itself is not submitted, these means of opposition, and of assessing the evidence are not available. And then the only guaranty of authenticity the testator's handwriting has disappeared. The Rules of Court, (Rule 77) approved in 1940 allow proof (and probate) of a lost or destroyed will by secondary evidence the testimony of witnesses, in lieu of the original document. Yet such Rules could not have contemplated holographic wills which could not then be validly made here. Could Rule 77 be extended, by analogy, to holographic wills? (NO) Spanish commentators agree that one of the greatest objections to the holographic will is that it may be lost or stolen an implied admission that such loss or theft renders it useless. As it is universally admitted that the holographic will is usually done by the testator and by himself alone, to prevent others from knowing either its execution or its contents, the above article 692 could not have the idea of simply permitting such relatives to state whether they know of the will, but whether in the face of the document itself they think the testator wrote it. Obviously, this they can't do unless the will itself is presented to the Court and to them. This holding aligns with the ideas on holographic wills in the Fuero Juzgo, admittedly the basis of the Spanish Civil Code provisions on the matter.(According to the Fuero, the will itself must be compared with specimens of the testators handwriting.) All of which can only mean: the courts will not distribute the property of the deceased in accordance with his holographic will, unless they are shown his handwriting and signature. Taking all the above circumstances together, we reach the conclusion that the execution and the contents of a lost or destroyed holographic will may not be proved by the bare testimony of witnesses who have seen and/or read such will. At this point, before proceeding further, it might be convenient to explain why, unlike holographic wills, ordinary wills may be proved by testimonial evidence when lost or destroyed. The difference lies in the nature of the wills. In the first, the only guarantee of authenticity is the handwriting itself; in the second, the testimony of the
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determine the authenticity of the handwriting of the testator. (Azaola v. Singson) Article 811 is merely permissive and not mandatory. Since the authenticity of the will was not contested, petitioner was not required to produce more than one witness; but even if the genuineness of the holographic will were contested, Article 811 cannot be interpreted to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of a holographic will, none being required by law (Art. 810, new Civil Code), it becomes obvious that the existence of witness possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not so express) "that the will and the signature are in the handwriting of the testator". There may be no available witness of the testator's hand; or even if so familiarized, the witnesses may be unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of Article 811 may thus become an impossibility. nd This is the reason why the 2 paragraph of Article 811 allows the court to resort to expert evidence. The law foresees the possibility that no qualified witness may be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency. What the law deems essential is that the court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the Court may still, and in fact it should, resort to handwriting experts. The duty of the Court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect. (Codoy v. Calugay) The word shall connotes a mandatory order, an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word shall, when used in a statute, is mandatory. In the case at bar, the goal to be achieved by the law, is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator. The paramount consideration in the present petition is to determine the true intent of the deceased. We cannot be certain that the holographic will was in the handwriting of the deceased.
ii. Formal Requirements Art. 813. When a number of dispositions appearing in a holographic will are signed without being dated, and the last disposition has a signature and a date, such date validates the dispositions preceding it, whatever be the time of prior dispositions. (n) Art. 814. In case of any insertion, cancellation, erasure or alteration in a holographic will, the testator must authenticate the same by his full signature. (n)
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(Ajero v. CA) A reading of Article 813 shows that its requirement affects the validity of the dispositions contained in the holographic will, but not its probate. If the testator fails to sign and date some of the dispositions, the result is that these dispositions cannot be effectuated. Such failure, however, does not render the whole testament void. Likewise, a holographic will can still be admitted to probate notwithstanding non-compliance with the provisions of Article 814. Unless the authenticated alterations, cancellations or insertions were made on the date of the holographic will or on testators signature, their presence does not invalidate the will itself. The lack of authentication will only result in disallowance of such changes. It is also proper to note that he requirements of authentication of changes and signing and dating of dispositions appear in provisions (Article 813 and 814) separate from that which provides for the necessary conditions for the validity of the holographic will (Article 810). This separation and distinction adds support to the interpretation that only the requirements of Article 810 of the NCC and not those found in Articles 813 and 814 are essential to the probate of a holographic will. Section 9, Rule 76 of the Rules of Court and Article 839 of the Civil Code enumerate the grounds for disallowance of wills. These lists are exclusive; no other grounds can serve to disallow a will. In a petition to admit a holographic will, the only issues to be resolved are: 1. whether the instrument submitted is, indeed, the decedents last will and testament; 2. whether said will was executed in accordance with the formalities prescribed by law; 3. whether the decedent had the necessary testamentary capacity at the time the will was executed; and 4. whether the execution of the will and its signing were the voluntary acts of the decedent. The object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud; accordingly, laws on this subject should be interpreted to attain these primordial ends. In the case of holographic wills, what assures authenticity is the requirement that they be totally authographic or handwritten by the testator himself. Failure to strictly observe other formalities will no result in the disallowance of a holographic will that is unquestionable handwritten by the testator. (Kalaw v. Relova) Ordinarily, when a number of erasures, corrections, and interlineations made by the testator in a holographic Will litem not been noted under his signature, ... the Will is not thereby invalidated as a whole, but at most only as respects the particular words erased, corrected or interlined. However, when as in this case, the holographic Will in dispute had only one substantial provision, which was altered by substituting the original heir with another, but which alteration did not carry the requisite of full
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c. Manner - I W B 1. Implication of law 2. Will, codicil, or other writing executed as provided in case of wills 3. Burning, tearing, cancelling, or obliterating the will with the intention of revoking it, by the testator himself, or by some other person in his presence, and by his express direction. If burned, torn, cancelled, or obliterated by some other person, without the express direction of the testator, the will may still be established, and the estate distributed in accordance therewith, if its contents, and due execution, and the fact of its unauthorized destruction, cancellation, or obliteration are established according to the Rules of Court (830). Subsequent wills which do not revoke the previous ones in an express manner, annul only such dispositions in the prior wills as are inconsistent with or contrary to those contained in the latter wills (831) A revocation made in a subsequent will shall take effect, even if the new will should become inoperative by reason of the incapacity of the heirs, devisees or legatees designated therein, or by their renunciation (832) A revocation of a will based on a false cause or an illegal cause is null and void (833). The recognition of an illegitimate child does not lose its legal effect, even though the will wherein it was made should be revoked (834). (Gago v. Mamuyac) The law does not require any evidence of the revocation or cancellation of a will to be preserved. It therefore becomes difficult at times to prove the revocation or cancellation of wills. The fact that such cancellation or revocation has taken place must either remain unproved of be inferred from evidence showing that after due search the original will cannot be found. Where a will which cannot be found is shown to have been in the possession of the testator, when last seen, the presumption is, in the absence of other competent evidence, that the same was cancelled or destroyed. The same presumption arises where it is shown that the testator had ready access to the will and it cannot be found after his death. It will not be presumed that such will has been destroyed by any other person without the knowledge or authority of the testator. The force of the presumption of cancellation or revocation by the testator, while varying greatly, being weak or strong according to the circumstances, is never conclusive, but may be overcome by proof that the will was not destroyed by the testator with intent to revoke it. In view of the fact that the original will of 1919 could not be found after the death of the testator Miguel Mamuyac and in view of the positive proof that the same had been cancelled, we are forced to the conclusion that the conclusions of the lower court are in accordance with the weight of the evidence. In a proceeding to probate a will the burden of proofs is upon the proponent clearly to establish
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The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil (836). If after making a will, the testator makes a second will expressly revoking the first, the revocation of the second will does not revive the first will, which can be revived only by another will or codicil (837). 11. Allowance and Disallowance of Wills a. Probate Testate over Intestate Proceedings Testate proceedings take precedence over intestate proceedings; it could not be dispensed with and is a matter of public policy. 2 Kinds of Probate Proceedings Ante mortem probate had during the lifetime of the testator; an innovation of the New Civil Code. Reasons it was allowed include minimization of fraud and undue influence, ease for the courts to determine mental condition of the testator during his lifetime, lessen number of contests. Testator may still alter or revoke will before his death, a new will should be made and be petitioned to be allowed. Probate after death of testator RTC acquires jurisdiction upon showing: 1. decedent died leaving a will 2. if resident resided or died in the province where court exercises territorial jurisdiction 3. if non-resident where estate is situated 4. testament or last will delivered to the court Residence of Deceased is not jurisdictional; only venue. Presentation for Probate the will shall always be subject to the control of the testator down to the time of his death. If it has been placed in the custody of another, he/she shall deliver the will to the court having jurisdiction or to the executor 20 days after knowledge of death of the testator. This shall also be applicable to the executor unless the will has been returned to the court and shall within such period, signify to the court his acceptance of the trust or make known in writing his refusal to accept it. Executors neglect of such duty with regard presentation of the will and the acceptance/rejection of executorship shall be subject to a fine of not exceeding P2000 unless he gives a satisfactory excuse to the court. Custodian of the wills neglect to deliver may be committed to prison and be kept until he delivers the will. Petition for Probate may be instituted by: 1. Any executor, devisee, legatee OR 2. Any other person interested in the estate at any time after death of testator. It must show: 1. fact of death (+time and place of death)
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Title to Property Probate court may only resolve whether property should be included in the inventory but is onlt provisional in character; cannot be subject to execution and doesnt constitute res judicata. Probate Setting Aside FAME (fraud, accident, mistake, excusable negligence) as grounds for setting aside judgment; to be filed within 60 days after learning of judgment Probate of Codicil may still be instituted notwithstanding probate of the will; failure to oppose the will does not preclude him from opposing codicil. Probate of New Will not barred by probate of a will if posterior to the one already probated (or if earlier, can stand together) Probate after Intestate Proceedings to render such letters of administration void without setting them aside. Disallowance of Wills Undue Pressure and Influence there must be coercion; any means employed upon and with the testator which, under the circumstances by which he was surrounded, he could not well resist, and which controlled his volition, and induced him to go what he otherwise would not have done. It destroys the free agency of the testator and interfere with the exercise of that discretion which the law requires as testator to possess as essential to a valid testamentary disposition. Fraud or Trickery does not involve coercion; may be such character that the testator is misled or deceived (nature/contents of document, extrinsic facts and in consequence of the deception regarding which the testator is led to make a certain will which, but for the fraud, he would not have made. No subsequent ratification is good without a formal re-execution or republication. (Gallanosa v. Arcangel) The decree of probate is conclusive as to the due execution or formal validity of the will. That means that the testator was of sound and disposing mind at the time he executed the will and was not acting under duress, menace, fraud, or undue influence; that the will was signed by him in the presence of the required number of witnesses, and that the will is genuine. (Dela Cerna v. Potot) The joint will being prohibited by law, its validity, in so far as the estate of the wife is concerned, must be reexamine and adjudicated de novo. The undivided interest of the wife should pass upon her death to her intestate heirs and not to the testamentary heir. Thus as to the disposition of the wife, the will cannot be given effect. A decree of probate decree is conclusive on the due execution and the formal validity of the will subject to such probate.
Roberts v. Leonidas (1984) A testate proceeding is proper in this case because Grimm died with two wills and "no will shall pass either real or personal property unless it is proved and allowed". The probate of the will is mandatory. It is anomalous that the estate of a person who died testate should be settled in an intestate proceeding. Therefore, the intestate case should be consolidated with the testate proceeding and the judge assigned to the testate proceeding should continue hearing the two cases. (Nepomuceno v. CA and Reyes v. CA) The probate of a will might become an idle ceremony if on its face it appears to be intrinsically void. Where practical considerations demand that the intrinsic validity of the will be passed upon, even before it is probated, the court should meet the issue (Nuguid v. Nuguid) (Dorotheo v. CA) Intrinsic validity is another matter and questions regarding the same may still be raised even after the will has been authenticated. Even if the will was validly executed, if the testator provides for dispositions that deprives or impairs the lawful heirs of their legitime or rightful inheritance according to the laws on succession, the unlawful provisions/dispositions thereof cannot be give effect. (Camaya v. Patulandong) It is well-settled rule that a probate court or one in charge of proceedings whether testate or intestate cannot adjudicate or determine title to properties claimed to be a part of the estate and which are equally claimed to belong to outside parties. All that said court could do as regards said properties is to determine whether they should not be included in the inventory. If there is no dispute, well and good; but if there is, then the parties, the administrator, and the opposing parties have to resort to an ordinary action for final determination of the conflicting claims of title because the probate court cannot do so. Having been apprised of the fact that the property in question was in the possession of third parties and more important, covered by a transfer certificate of title issued in the name of such third parties, the respondent court should have denied the motion of the respondent administrator and excluded the property in question from the inventory of the property of the estate. It had no authority to deprive such third persons of their possession and ownership of the property. The probate court exceeded its jurisdiction when it declared the deed of sale and the titles of the Camayas as null and void, it having had the effect of depriving them possession and ownership of the property. (In Re: Will of Palaganas) Our laws do not prohibit the probate of wills executed by foreigners abroad although the same have not yet been probated and allowed in the countries of their execution.
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b. Grounds for Disallowance F I F U M 1. Formalities not complied with 2. Insane or mentally incapable of making a will, at the time of its execution; 3. Force or under duress, or the influence of fear, or threats; 4. Fraud signature 5. Undue and improper pressure and influence, on the part of the beneficiary or of some other person; 6. Mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto. (839) Denial of Probate a will should not be disallowed on dubious grounds (Alsua-Betts v. CA) Between the highest degree of soundness of mind and memory which unquestionably carries with it full B. Institution of Heirs Art. 356
Kind of Heir COMPULSORY VOLUNTARY LEGAL Predecease 1. Transmit nothing 2. Representation 1. Transmit nothing 2. NO Representation 1. Transmit nothing 2. Representation Incapacity SAME SAME SAME
Renunciation 1. Transmit nothing 2. NO Representation 1. Transmit nothing 2. NO Representation 1. Transmit nothing 2. NO Representation
Disinheritance 1. Transmit nothing 2. Representation 1. Transmit nothing 2. Representation 1. Transmit nothing 2. Representation
1. In General Art. 840. Institution of heir is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations. (n) Art. 841. A will shall be valid even though it should not contain an institution of an heir, or such institution should not comprise the entire estate, and even though the person so instituted should not accept the inheritance or should be incapacitated to succeed. In such cases the testamentary dispositions made in accordance with law shall be complied with and the remainder of the estate shall pass to the legal heirs. (764) a. Extent of grant Art. 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in favor of any person having capacity to succeed. One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions of this Code with regard to the legitime of said heirs. (763a) b. Effects of predecease of heir
Art. 856. A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code. (766a) c. Compulsory Heirs Art. 887. The following are compulsory heirs: (1) Legitimate children and descendants, with respect to their legitimate parents and ascendants; (2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants; (3) The widow or widower; (4) Acknowledged natural children, and natural children by legal fiction; (5) Other illegitimate children referred to in Article 287.
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Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they exclude one another. In all cases of illegitimate children, their filiation must be duly proved. The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the manner and to the extent established by this Code. (807a) d. Voluntary Heirs 2. Identification of Heirs, Manner of Institution Art. 843. The testator shall designate the heir by his name and surname, and when there are two persons having the same names, he shall indicate some circumstance by which the instituted heir may be known. Even though the testator may have omitted the name of the heir, should he designate him in such manner that there can be no doubt as to who has been instituted, the institution shall be valid. (772) Art. 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution when it is possible, in any other manner, to know with certainty the person instituted. If among persons having the same names and surnames, there is a similarity of circumstances in such a way that, even with the use of the other proof, the person instituted cannot be identified, none of them shall be an heir. (773a) Art. 845. Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of persons shall be valid. (750a) Art. 846. Heirs instituted without designation of shares shall inherit in equal parts. (765) Art. 847. When the testator institutes some heirs individually and others collectively as when he says, "I designate as my heirs A and B, and the children of C," those collectively designated shall be considered as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a) Art. 848. If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears. (770a)
Art. 849. When the testator calls to the succession a person and his children they are all deemed to have been instituted simultaneously and not successively. (771) Art. 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of the inheritance, legal succession takes place with respect to the remainder of the estate. The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and all the parts do not cover the whole inheritance. (n) Art. 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally. (n) Art. 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionally. (n) 3. Cause Art. 850. The statement of a false cause for the institution of an heir shall be considered as not written, unless it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (767a) 4. Preterition Art. 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line, whether living at the time of the execution of the will or born after the death of the testator, shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious. If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation. (814a) a. Concept b. Distinguished from Inheritance c. Who are covered d. Effects