Conditional Testamentary Dispositions

Question 1

When is a testamentary disposition conditional?

Answer 1

A testamentary disposition is conditional, when its
effectivity is subordinated to the fulfilment or non
fulfilment of a future and uncertain fact or event.

Question 2

What is a condition?

Answer 2

A condition is a future and uncertain fact or event upon the fulfillment of which the testamentary disposition is made to depend.

• The testator cannot impose any charge, condition, or substitution whatsoever upon the legitimes prescribed in this Code. Should he do so, the same shall be considered as not imposed.

Exception: That the hereditary estate shall not be partitioned of a period of twenty (20) years. Under Article 1083, this power of the testator to prohibit the division of the estate applies even to the legitime of the compulsory heirs.

The rule just stated is a reiteration of the untouchability of the legitime of the compulsory heirs.

Question 3

When is a condition impossible?

Answer 3

A condition is impossible when it is not possible of
realization because it is either contrary to physical,
juridical or moral laws.

Question 4

What is the effect if the impossible conditions and those contrary to law or good customs are imposed by the testator?

Answer 4

It shall be considered as not imposed and it shall not affect the heir (also the legacy or devisee) even if the testator
should otherwise provide.

There is a presumption in this case that the condition is due to a mistake or oversight or merely a whim or caprice of the testator. Consequently, it must be disregarded as a matter of justice to the instituted heirs, devisees, or legatees.

Question 5

X said in his will, “I hereby institute my friend B, subject to the condition that he will be able to show his ability to fly in six (6) months”. Suppose B was not able to comply with the condition, can B inherit?

Even if expressly stated?

Answer 5

Yes. Since it is an impossible condition, it shall be
considered as not imposed and shall in no manner
prejudice the heir.

Yes. The law here presumes that the condition is an error or oversight of the testator or a mere whim or caprice and it would not be just to give it effect to the prejudice of the heirs, devisees and legatees.

Question 6

On the condition that he can make Ms. Nuval pregnant, one (1) year after my death?

Answer 6

Void. It is contrary to good customs, hence, the heir may inherit

Question 7

On the condition that he will convert to the Mormon

religion within one (1) year after my death?

Answer 7

Void. Deemed contrary to public policy of respecting

freedom of religion.

Question 8

Testator said, “I will give Father Pio ½ of my estate on the condition that he will marry within two (2) years.” Void or valid?

Answer 8

Void. Contrary to morals and good customs.

Question 9

On the condition that he will not marry Ms. Nuval?

Answer 9

Valid, since it is just a relative prohibition. (Security is need.)

Question 10

On the condition that he will not marry an Ilocana?

Answer 10

Valid, since it is just a relative prohibition. (Security is

need.)

Question 11

X died with a will instituting A, as heir to ¼ of the entire estate, provided that before he gets his ¼ share, A must kill B first. If A did not kill B, can he still inherit?

Answer 11

Yes. Because the condition which is unlawful is deemed

not imposed in the will.

Question 12

If the condition imposed in the will is impossible or

contrary to law, what is the effect?

Answer 12

It is deemed not imposed.

The law presumes that the condition was imposed by
mere oversight.

Question 13

What time shall be considered in determining whether the condition is imposed or not?

Answer 13

According to Sanchez Roman, there is only one time to consider, and that is, the time when the condition is to be fulfilled.

Question 14

Rules on Marriage

Answer 14

1. The prohibition is void only when it is absolute;
   that is, when the heir, devisee or legatee is
   forbidden to marry any person at any time or
   place or when is required to remain unmarried
   or in widowhood.
2. A prohibition on first marriage is always void and
   the condition containing it will be considered as
   not written.
3. When the prohibition refers to subsequent
   marriages, the general rule is that, it is void, but
   it is valid when imposed upon a widow or
   widower by:
   a. the deceased spouse; or
   b. ascendants of the deceased spouse; or
   c. descendants of the deceased spouse
4. When the prohibition refers only to particular
   persons or to particular periods or places, it is
   not absolute but only relative, and therefore,
   valid. However, when by its terms the
   prohibition appears to be relative, it will be
   understood as absolute, if the conditions
   requires by the testator practically render it
   impossible for the heir or legatee to get married
   at all.

Question 15

X instituted his daughter A as heir to the free portion of his estate subject to the condition that she remains single all her life. Thereafter, A married B. Can A still inherit the free portion of the estate?

Answer 15

Yes. Because the institution of A, as an heir to the free portion of the estate remains valid, despite her marriage to B. The condition imposed is considered as not written. Thus, the validity of the institution of A, as an heir is not affected.

Question 16

If the spouse was prohibited to marry until he or she

reaches the age of 80, is the prohibition valid?

Answer 16

Although the condition is relative, yet it is void because its effects are very onerous on the part of the surviving spouse.

Question 17

When W1 died, H married W2. W1 is the daughter of A. He is the son of B, while W2 is the daughter of C. W1 and H had two (2) children, D and E. W2 and H also had 2
children, F and G. W2 had a child from a previous
marriage with Y, named I.

1. If W2 died, can she validly impose a condition in her will that H cannot contract another marriage as soon as condition for giving properties to H?
2. Will H not inherit everything, if H contracts another
   marriage?
3. If W2 said in her will, “I give to H, in addition to his legitime, the entire free portion of my estate. However, I wish that H will not contract another marriage.” H subsequently remarried. Can he inherit?
4. If W2 said in her will, “I give to H, in addition to his
   legitime, the entire free portion of my estate, subject to the condition that he will not remarry.” H subsequently
   remarried. Can he inherit?
5. Who can impose absolute prohibition with respect to
   W2?
6. Why cannot A, D and E have the same right?
7. Why cannot B have the same right?

Answer 17

1. Yes (deceased spouse).
2. No. Only the free portion if H was also instituted to it is
   affected. But H is still entitled to his legitime.
3. Yes. Mere expression of the will does not constitute a prohibition. The prohibition must be clearly imposed as a condition in the will; otherwise, it does not affect the rights of the widow or the widower.
4. No. In this case, the prohibition was clearly imposed as a condition. (Note: disinheritance refers only to the free portion. The legitime is not affected. Hence, H may still get his legitime, but not the free portion.
5. F,G,C and I.
   Both the common children of the deceased and the surviving spouse and the legitimate children of the spouse in a prior marriage are given the right as the law does not make any distinction. The reason for upholding the prohibition is the same in either case.
6. A is the W1’s ascendants.
   D and E are W1’s descendant.
7. B is H’s ascendant.
   It would be absurdity. Why would B prohibit his own son to marry? There is no need to protect his own properties anyway.

Question 18

What are the reasons for upholding the prohibition?

Answer 18

1. Conjugal and family affection – as a means of securing more fidelity, even beyond grave.
2. In order to avoid the consequence that the property coming from the deceased spouse, should be enjoyed, through a subsequent marriage, by a person, who with more or less offense to the memory of the deceased, has taken his/her place in the family

Question 19

What is Disposition Captoria?

Answer 19

It is any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person.

Question 20

Is Disposition Captoria valid?

Answer 20

No. It is deemed void. Not only it is the condition void but the disposition. Hence, the same has no effect and nobody inherit therein.
It is void because it renders a will a contractual agreement.
Thus it will bind both the parties.

This cannot be because a binding contract is contrary to the essence of a will which is revocable.

The reason for the precept is that testamentary succession is an act of liberality, not a contractual agreement.

Besides, to permit it would impair the heir’s freedom of testamentary disposition with respect to his own property as well as to allow the testator to dispose of the property of another after the latter’s death.

Question 21

What is a Modal Substitution or Institucion Sub Modo?

Answer 21

It is one where the testator states:
1. the object of the institution; or
2. the purpose of the application of the property
left by the testator upon the heir; or
3. the charge imposed by the testator upon the
heir.

Question 22

T said in his will, “I hereby institute X to one half (½) of
my estate, but I order him to use twenty five percent
(25%) of it for the purpose of building a clinic for the
poor. Is it a Modal Institution?

Is the condition valid?

Answer 22

Yes.

Yes, the condition is valid.

Question 23

T stated, “I will give X one half (1/2) of my estate, if he
passes the bar examination in his first attempt.” Is the
institution modal or conditional?

Answer 23

t is conditional, since, the right of A as well as its
demandability is suspended until he passes the bar
examination in his first attempt.

Question 24

T will give one half (1/2) of he estate to X, if X uses the
income for the construction of mental hospital. What
kind of institution is this?

Answer 24

It is a modal institution.

Question 25

What if T stated, “I will give X P10,000.00 (a legacy), one
half (1/2) of the amount of which must be five for
masses, prayers and other pious words.” Is the legacy
subject to a mode or condition?

Answer 25

It is subject to a mode.
*It should not be understood, however, that every expression of wish of the testator not constituting a condition should be considered as a mode. The testator may make indications, suggestions, etc., which do not have a coercive or obligatory force.
In case of doubt, the statement of the testator should be considered as a mode, which imposes an obligation, but merely a suggestion which the heir or legatee may follow or not.

Question 26

In the preceding problem, can X demand for the property immediately after T’s death?

Answer 26

Yes. Provided that he gives a security

Question 27

What is the purpose of the security?

Answer 27

So that the heir/devisee/legatee may comply with the wished of the testator and for the return of anything he may receive, together with its fruits and interests, if he should be disregard the obligation.

*Those persons, for whose benefit the obligation has been imposed upon the heir, may demand its compliance.

Question 28

What is the difference between a mode and a condition?

Answer 28

A mode obligates but it does not suspend. A condition
suspends but it does not obligate.

In general, mode is obligatory, except when it is imposed for the purpose of the heir or legatee himself.
The condition is fulfilled in order to acquire a perfect right as heir or legatee while a mode is complied with because of being already an heir or legatee.

*Following the principle that the testamentary dispositions are generally acts of liberality, a obligation imposed upon the heir or legatee should not be considered a condition,
unless, it clearly appears from the will itself, that such was the intention of the testator.

In case of doubt, the institution should be considered as modal and not conditional.

Question 29

Kind of Condition

Answer 29

1. Potestative Condition – one which depends
   exclusively upon the will of the heir, devisee or
   legatee and must be performed by him
   personally.
2. Casual - one that does not depend upon the will
   of the heir, devisee or legatee, but upon chance
   and/or upon the will of a third person.
3. Mixed – when it depends jointly upon the will of
   the heir, devisee or legatee and upon chance/ or
   the will of a third person.

Question 30

Suppose that T imposes a condition potestative in his will, when must it be fulfilled?

Answer 30

After T’s death, except, when it has already been fulfilled and is of such a nature that it cannot be fulfilled again.

*The aforementioned rule is applicable only when the
potestative condition is of a positive not of a negative
character.

Question 31

If the condition is casual or mixed, when shall it be

fulfilled?

Answer 31

It shall be sufficient if it happens or be fulfilled at any time before or after death of the testator, unless he has provided otherwise.
Should it have existed or should it have been fulfilled at the time the will was executed and the testator was unaware thereof, it shall be deemed as complied with.

If the testator had knowledge thereof, it must be fulfilled again unless such a condition can no longer exist or cannot be complied again.

Question 32

Why after death in cases of potestative condition?

Answer 32

This is inasmuch as the potestative condition is to be
performed by the heir, devisee or legatee in obedience to the wishes of the testator. Since, the testator may still change his will at any time before the moment of his death, there is really no testamentary disposition that the heir, devisee or legatee should obey until such death.

Question 33

What about casual or mixed?

Answer 33

In cases of casual or mixed conditions, where the will of
the heir, devisee or legatee is limited or without intervention, it is immaterial to the testator when the
condition happens, unless, he knew at the time he made
his will, that the condition already happened, it is
presumed that he wants it to be fulfilled anew. But,
despite his will, the condition will be considered fulfilled, if
it cannot be repeated or if it cannot exist anew.

Question 34

X instituted A as his heir, with a condition that A must get married first to B. At the time of the execution of the will, A and B were already married. But this fact was unknown to X. What is the effect?

Answer 34

The condition shall be deemed to have been complied

with.

Question 35

What if in the preceding problem, X instituted A as an heir, subject to the condition that he must first get married, when in fact, X is well aware that at the time of the execution of the will, a is already married to B. What is the effect?

Answer 35

It is evident in this case that the condition is of such nature that it cannot be complied with again. Consequently, it is
considered fulfilled.
However, if A becomes a widower before the death of X, then the general rule will still have to be applied. In other words, in order to be entitled to the inheritance, A must get married again.

Question 36

T said in his will, “ I hereby give one half (1/2) of my
estate to M subject to the condition that for one (1)
whole year after my death, he will not smoke.” Is the
condition valid?

In the preceding problem, can M immediately demand
the property after T’s death?

Answer 36

Yes. It is a negative potestative condition.

Yes. He gets the inheritance right away, but he must first
give a security to guarantee (caution muciana) that he
would not smoke for one (1) year after T’s death.
In case he smokes within the said period, he should return whatever he may have received, together with its fruits and
interest.

Question 37

What is a suspensive condition as applied to succession or

to a testamentary disposition?

Answer 37

It is a condition upon the fulfillment of which, successional
rights arising from an institution of heir or from a devise or
legacy are acquired.

Question 38

What is a resolutory condition as applied to succession or

to a testamentary disposition?

Answer 38

It is a condition upon the fulfillment of which rights
already acquired by virtue of an institution of heir or of a
devise or legacy are extinguished or lost.

Question 39

What is the difference between a suspensive and a

resolutory condition?

Answer 39

What is the difference between a suspensive and a

resolutory condition?

Question 40

If the institution is subject to a suspensive condition,
what is the nature of the right of the instituted heir,
devisee or legatee if the condition is not yet fulfilled?

Answer 40

It is mere hope and expectancy. Thus, pending the
fulfillment of the suspensive condition, the heir, devisee or
the legatee cannot yet demand for the delivery of the
inheritance.

Question 41

On the condition, that M will become a lawyer five (5)

years after my death. Is the condition valid?

Answer 41

Yes. It is a suspensive condition.

Question 42

Can M immediately demand the property after T’s death?

In the preceding problem, can M not demand the
property, even if he posts a bond?

What will happen to the property?

Answer 42

No. When the institution is under suspensive condition,
the right of the heir is not transmitted to him, until the
condition is fulfilled.

Yes. It is immaterial, because the filing of the bond is not
even required.

Since between the death of the testator and the
happening of the condition, it is uncertain whether the
heir would get the property or not the property will be
placed under administration.

Question 43

T said in his will, “I hereby give M one half (1/2) of my
estate subject to the condition that he will acquire it only
after five (5) years after my death.” Can M immediately
demand for the property?

What about if M is willing to post a bond?

What will be done to the property?

Are the legal heirs required to post a security?

Answer 43

No. Because it is subject to a suspensive term.

It is immaterial because filing of the bond is not even
required.

It shall be placed under usufructuary of the heirs.

Yes, the legal heirs required to
post a security

Question 44

T said in his will, “I hereby give one half (1/2) of my
estate to M, but only for five (5) years after my death. Is
this valid?

In the preceding problem, is the filing of bond by the legal heirs required?

Why the difference?

Answer 44

Yes. It is subject to a resolutory term/period.

No.

Because in an institution ex-die (suspensive term), the
legal heirs, who are called to the property until the day
arrives, are not merely administrators who must account;
but, usufructuaries who have the right to enjoy the fruits
of the property.

Question 45

With respect to terms and conditions

Answer 45

1. Suspensive condition, apply Article 885 not Article 888.
2. Ex die (suspensive term) – when the institution is from
   a day certain. The testator may designate a person, who
   will enjoy the property, until the day comes when the
   instituted heir shall take it.
3. In diem (resolutory term) – when the institution is to a
   day certain. The testator may appoint another to succeed
   the instituted heir.
   Hence, Article 885 should be considered merely as
   suppletory. Apply it only, when the testator has not
   provided otherwise.

Question 46

1. Suspensive condition, apply Article 885 not Article 888.
2. Ex die (suspensive term) – when the institution is from
   a day certain. The testator may designate a person, who
   will enjoy the property, until the day comes when the
   instituted heir shall take it.
3. In diem (resolutory term) – when the institution is to a
   day certain. The testator may appoint another to succeed
   the instituted heir.
   Hence, Article 885 should be considered merely as
   suppletory. Apply it only, when the testator has not
   provided otherwise.

Answer 46

If it involves a suspensive condition, a bond is necessary
because the legel heir may alienate the property causing
injury to the instituted heir.

If it is a resolutory condition, there is no need for the legal
heir to post a bond because after the resolutory condition
is fulfilled or has occurred, ownership is consolidated on
the legal heirs. So there is no need for protection.

Question 47

T said in his will, “I hereby give one half (1/2) of my
estate to M, subject to the condition that is able to grow his hair up to his knees within a period of four (4) years.”

T’s closest relative cut-off the hair of M, so that it reaches only his waist. Can M inherit?

Answer 47

Yes.

Question 48

“Subject to the condition that M will marry Ms. Vizconde within five (5) years.” Suppose Ms. Vizconde refused, can M inherit?

Answer 48

No. Because the inheritance is subject to the occurrence of a mixed condition.

Question 49

In the preceding problem, suppose Ms. Vizconde is T’s nearest relative, can M inherit?

Answer 49

Yes. In this case, it is not the fault of M, that the condition did not occur because Ms. Vizconde prevented it from happening, so that, she will inherit more.

Question 50

Constructive compliance

Answer 50

1. In case of potestative conditions
   Since, the performance does not depend on the will of the heir, devisee or legatee, there must always be fulfillment as a fact or actual compliance.
2. In case of potestative conditions
   It may happen that the heir, devisee or legatee is willing to obey the wishes of the testator, doing all that is in his power towards the realization of the condition, which, however, is not fulfilled for reasons nor imputable to the fault or neglect of such heir, devisee or legatee. In such case, the condition should be considered as fulfilled.
3. In case of mixed conditions
   Since the will of a third party intervenes, a distinction
   should be made. If the heir, devisee or legatee has done everything within his power towards the fulfillment of the condition, but, this is not fulfilled because of the failure of the third party to comply with what is expected of him:
   a. The condition is deemed fulfilled, if such third party has
   an interest in the fulfillment or non fulfillment of the
   condition.
   b. Otherwise, the condition cannot be considered as
   fulfilled, and the institution is annulled.