B10. Heirs

Question 1

a) Compulsory Heirs

Question 2

b) Institution of Heirs

Requisites of a Valid Institution

Answer 2

1. The will must be extrinsically valid;
   NOTE: The testator must have the testamentary capacity to make the institution.
2. The institution must be intrinsically valid; and NOTE: The legitime must not be impaired, the person instituted must be identified or identifiable, and there is no preterition.
3. The institution must be effective.
   NOTE: No repudiation by the heir; testator is not predeceased by the heir.

Question 3

IOH. (2) Collective Institution

Answer 3

If some are individually designated and others
collectively, those collectively designated are
considered as individually instituted unless it
clearly appears that the intention of the
testator was otherwise. (Art. 847, NCC

E.g. “I designate as my heirs A and B and the children of C.” - The children of C shall be considered as individually instituted unless the testator clearly intended otherwise.

Question 4

IOH. (3) Proscription Against Successive Institution (verify)

Answer 4

When the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively, unless the contrary intention appears. (Art. 849, NCC)

If the testator institutes “A” and his five children as his heirs with respect to the disposable free portion of the inheritance, it is clear that such disposable portion shall be divided equally among “A” and the five children. (Jurado, Comments and Jurisprudence on Succession, 2009 ed. p. 169)

Question 5

IOH. (4) Institution Based on a False Cause

Answer 5

GR: The institution is still valid and the statement of a false cause is considered not written.

XPN: When it appears from the will that the testator would not have made such institution if he had known the falsity of such cause. (Art. 850, NCC) As a consequence, the institution shall be annulled.

Question 6

Requisites for the Annulment of
Institution by Reason of False Cause:

Answer 6

1. The cause is stated in the will;
2. It is shown to be false; and
3. It appears on the will that the testator would not have made the institution if he had known the falsity of the cause. (Art. 850, NCC)

Question 7

c) Substitution of Heirs

Answer 7

Substitution is the appointment of another heir so that he may enter into the inheritance in default of the heir originally instituted. (Art. 857, NCC) (2002 BAR)

The concept of substitution applies in cases where the heir or heirs instituted should die before the testator or should not wish, or should be incapacitated to accept the inheritance

Question 8

Substitution. (1) Causes of Substitution

Answer 8

GR: If the simple substitution is without a statement of the cases to which it refers, the same shall comprise incapacity, predeceases or renunciation.

XPN: If the testator provides that substitution shall take place only in case of only one (e.g., predecease), it cannot take place by reason of repudiation or incapacity.

Question 9

(2) Fideicommissary Substitution (Compared With Testamentary Trusts)

Answer 9

Elements of Fideicommissary Substitution

1. There must be a first heir or fiduciary who takes the property upon the testator’s death;
2. An absolute obligation is imposed upon the fiduciary to preserve and to transmit to a second heir the property at a given time;
3. There is a second heir who takes the property subsequently from the fiduciary and must be one degree from the first heir; and
4. The first and second heir must both be living and qualified at the time of the death of the testator

Question 10

Fideicommissary substitution

Answer 10

Fideicommissary Substitution (Indirect Substitution)– It is a substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and to transmit to a second heir the whole or part of the inheritance. It shall be valid provided such substitution does not go beyond one degree from the heir originally instituted, and provided further, that the fiduciary or first heir and the second heir are living at the time of the death of the testator. (Art. 863, NCC) (2002, 2008 BAR)