MIDTERMS Flashcards
What is succession (Art. 774)
A mode of acquisition by which, property, (transmissible) rights and obligations (to the extent of the value of the inheritance), of a person are transmitted through his death to another/others by his will or by operation of law.
What are the kinds of succession
Testate, intestate succession and mixed
Requisites for transmission of successional rights
1) Death of predecessor
2) Existence and capacity of successor
3) Provision of law/will granting succession
4) Acceptance by the successor
Principles of succession
1) It takes place upon death
2) There are legitimes reserved in law
3) Presumption of equality – Heirs of equal degree/proximity inherit in equal share
4) State has a share in the inheritance (tax)
5) Heirs are not liable for the estate’s debt beyond their share of the inheritance
Modes of acquisition
1) Occupation
2) Intellectual creation
3) Law
4) Donation
5) Testate and intestate
6) Tradition
7) Means of prescription
Decedent
Person whose property is transmitted through succession
Heir
Person called to succession
Devisee
Person gifted real property
Legatee
Person gifted personal property
Compulsory heirs
1) Legitimate children and descendants
2) (In default of the foregoing) Legitimate parents and ascendants
3) Widow
4) Acknowledged natural children, and natural children by legal fiction
5) Other illegitimate children
Kinds of heirs
1) Compulsory
2) Voluntary
3) Legal/intestate
Compulsory vs. Legal
In compulsory, there is always a portion reserved for them. Legal heirs only inherit by virtue of law– not necessarily because they have a right to a legitime.
Kinds of compulsory heirs
1) Primary
2) Secondary
3) Concurrent
Proximity
Number of generations
Degree
Each generation
Collateral line
Extends only to the 5th degree in intestate
How to determine qualification of heir
At the time of death
Objects of succession
1) Property
2) Transmissible rights and obligations
3) Those that accrued since opening of succession
Exceptions to objects of succession
Those not transmissible by nature, law or stipulation
Presumption of death for purposes of opening succession
1) For the purpose of succession, 10 years
2) 75 years or older, 5 years
Presumption of death
GEN RULE: 7 years
EXC:
1) Person on board a vessel/aeroplane, 4 years
2) Armed forces and in war, 4 years
3) Danger of death or under other circumstances, 4 years
Rule re: donations during marriage
In a property regime other than ACP, you cannot donate more than 1/5 of present property.
When can you revoke a donation by reason of marriage
1) Marriage was not celebrated/declared void (except those donations made in the marriage settlement)
2) Marriage takes place without consent of parent
3) Marriage is annulled/donee acted in bad faith
4) Donation to a guilty spouse in legal separation
5) Donation was with a resolutory condition that was left unfulfilled
6) Act of ingratitude
Governing law for succession
The law at the time the decedent died
Allowed cases of contracts on future inheritance
1) Donation propter nuptias – Donations by reason of marriage between future spouses with respect to their future property (to take effect only in death)
2) Partition of property inter vivos by a person to take effect upon death
Acceptance of inheritance
Purely voluntary and free and must be done when there is certainty as to (1) the death of the decedent, and (2) the right to the inheritance
Who may repudiate the inheritance of a minor?
Parent/guardian provided there is judicial authorization
Who may accept/repudiate the inheritance on behalf of the poor?
GEN: Person designated
EXC: Executor, justice of the peace, mayor, municipal treasurer by majority vote
Who may accept/repudiate the inheritance of a corporation?
Lawful representatives qualified to acquire property.
It may also be repudiated only by court approval.
Who may repudiate for deaf-mutes who cannot read or write?
Guardians with judicial approval
Tacit acceptance
Acceptance resulting from acts from which intention to accept is necessarily implied or which one would have no right to do except in the capacity of an heir
When is an inheritance deemed accepted?
1) Sell, donate or assign his right to someone else
2) Renounces the same even if gratuitously for the benefit of his co-heirs
3) Renounces it for a price in favor of his co-heirs indiscriminately
How to do repudiation
1) In a public or authentic instrument
2) By petition to the court having jurisdiction
Who may accept inheritance for deaf-mutes who can read and write?
Them personally or their agent
Who may accept inheritance for deaf-mutes who can’t read and write?
Guardian
Who may accept/repudiate for public official establishments?
Themselves with the approval of the government
Who may accept/repudiate for incapacitated persons?
Parents or guardians
Express acceptance
Public or private document
When should you accept/repudiate?
Within 30 days after court issuance of the distribution of the estate
Elements of succession
1) Mode of acquisition
2) Property, rights and obligations are transmitted
3) Transmission takes place by virtue of death
4) Takes place by will/by operation of law
5) Transmission to another
When does intestate succession take place?
Testamentary succession
Where there is a designation of an heir, made in a will, executed in a form prescribed by law
Mixed succession
Effected partly by will and partly by operation of law
Revocation
An act of the mind of the testator terminating the potential capacity of the will to operate at the death of the testator
Difference between revocation and nullity
1) Where does it come from
2) What puts it into operation
3) Time of operation
4) Revocability
5) Effect
Law governing revocation if done in the PH
PH Law
Law governing revocation if done outside the PH and the testator is NOT domiciled in the PH
1) Law of the place where the will was made
2) Law of the place in which the testator had been domiciled
Modes of revocation
1) By implication of law
2) Some will, codicil or other writing
3) Burning, tearing, cancelling or obliterating the will (either by testator, or by some other person in his presence and by his express direction)
Revocation by implication of law
1) Commission of the heir of some act of unworthiness
2) Transformation of the thing given
3) Preterition
4) Judicial demand by the testator of a credit that was to be given as a legacy
5) Legal separation
Requisites for revocation by subsequent instrument
1) Subsequent instrument also complied with the formal requisites of a will
2) Testator possesses testamentary capacity
3) Subsequent instrument has an express revocatory clause OR is incompatible with the prior will
Requisites for the destruction of a will
1) Corpus (overt physical act) – physical destruction
2) Animus (animo revocandi) – capacity and intent to revoke )
Presumption of revocation
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. (Gago v. Mamuyac)
Doctrine of dependent relative revocation (EXC)
Where the act of destruction is connected with the making of another will, so as to fairly raise the inference that the testator meant the revocation of the old to depend upon the efficacy of the new disposition intended to be substituted, the revocation will be conditional and dependent upon the efficacy of the new disposition.
What is the connection of the doctrine of dependent relative revocation with the revocation of a will based on a false or illegal cause?
If there is a revocation but the revocation’s cause is FALSE or ILLEGAL, the revocation is null and void and the previous will will subsist.
Falsity of cause
If the facts were not as the testator supposed them to be or if the act of revocation was induced by a belief which turns out to be false, there is NO REVOCATION.
There WILL be revocation if the cause was only alleged as a reason for revoking but the intent to revoke absolutely was still there.
Republication
Reproduction in a subsequent will of dispositions in a previous will which is void as to form.
Probate
To prove before some officer/tribunal bested by law with authority for that purpose, that the instrument offered to be proved is the last will and testament of the deceased (identity) and that it has been executed, attested and published (extrinsic validity) as required by law and that the testator was of sound and disposing mind (capacity).
Rule regarding republication
GEN: Enough to reference to the original will to republish it through codicil
EXC: If the original will is void as to its form, reproduction is necessary
Modes of probate
1) Ante mortem - during life of the testator
2) Post mortem - after the death of the testator
Effect of allowance of wills
The order allowing the will after becoming final is conclusive against the whole world as to the due execution of the will and the capacity of the testator
When will the will be disallowed?
1) Formalities are not complied with
2) Insanity or mental incapability at the time of its execution
3) Executed through force/under duress, or the influence of fear, or threats
4) Undue and improper pressure and influence on the part of the beneficiary or of some other person
5) Signature of the testator was procured by fraud
6) Testator acted by mistake or did not intend that the instrument he signed should be his will
Revocation vs. Disallowance
1) Source
2) How can it be made?
3) Scope
Violence
Serious or irresistible force is employed
Intimidation
Compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or property (or that of his spouse, descendants or ascendants).
Take into account age, sex, and condition of the person in determining the degree of intimidation.
Undue influence
Improper advantage of his power over the will of another, depriving the latter of a reasonable freedom of choice.
Consider: confidential, family, spiritual and other relations between the parties or the possibility of mental weakness, ignorance or financial distress
Will
An (personal, solemn, revocable and free) act wherein a person is permitted, with the formalities prescribed by law, to control to a certain degree the disposition of his estate, meant to take effect after his death
When would a survivorship agreement be annulled?
1) When it used as a cloak to hide an inofficious donation
2) When it transfer property in fraud of creditors
3) When it is used to defeat the legitime of a forced heir
Characteristics of a will
1) Purely, individual, personal and free
2) Disposes of property
3) Revocable
4) Formally executed
5) Mortis causa
Who may make a will
All those not expressly prohibited
Who are expressly prohibited from making a will
1) Those under 18
2) Those of unsound mind at the time of execution
Joint will
A will that is jointly signed by and is made in the same instrument by 2 or more persons, made either for their reciprocal benefit or for the benefit of a 3rd person
Mutual wills (not prohibited so long as not cojointly made)
Separate wills of 2 persons that are reciprocal in provision
Rule on delegation
GEN: The duration/efficacy of the heirs, or the determination of their portions cannot be left to third persons
EXC: The distribution of specific property/sums of money to specified classes or causes may be left to a third person
Extrinsic ambiguity
Ambiguity on its face; based on the provisions of the will
Intrinsic ambiguity
Language of the will is clear but in light of extrinsic evidence, there is suggested more than 1 interpretation
Governing law for a Filipino in a foreign country
Law of the country in which he may be
Governing law for an alien living abroad
1) Law of the place of residence
2) Law of his citizenship
3) PH law
Governing law for a will made in the PH by a citizen of another country
1) Law of the place of residence
2) Law of his citizenship
Holographic will (Art. 810)
A will entirely written, dated and signed by the hand of the testator
Governing law (time)
Law in force at the time the will is made
Rule regarding place of execution
GEN: Law of the country where the will was executed
EXC: Wills executed before diplomatic/consular officers of the Philippines, then PH law
Law governing content
1) Rights to inheritance of a person that died before the NCC, will be governed by the old CC
2) Rights of those who die after the NCC, will be governed by the NCC; BUT testamentary provisions will only be carried out as may be permitted by the NCC
Governing law for successional rights
As to order of succession, amount of successional rights and intrinsic validity of the provisions, consider the national law of the decedent
Testamentary capacity
1) Know the nature of your estate
2) Proper objects of his bounty
3) Character of the testamentary act
(Ortega v. Valmonte)
Presumption regarding mental capacity
PRESUMPTION: That every person is of sound mind
BURDEN OF PROOF: On the person opposing probate
EXC: If the testator, 1 month or less before the execution of his will, was publicly known to be insane.
NEW BURDEN: On the person maintaining validity to prove the will was made during a lucid interval
Rule regarding supervening incapacity
Supervening incapacity does not invalidate an effective will. The vice versa is true– that supervening capacity will not validate a will of in incapable person.
Requirement for all wills (Art. 804)
1) In writing
2) In a dialect known to the testator
Solemnities of a Notarial Will (Art. 805, 806)
1) Subscribed at the end by the testator himself/by the testator’s name written by some other person in his presence, and by his express direction
2) Attested and subscribed by 3 or more credible witnesses
3) Testator + witnesses must also sign each and every page on the left margin (except the last)
4) Number the pages correlatively in letters on the upper part of each page
5) Have an attestation clause with the (1) number of pages and (2) the fact that the testator signed the will and every page thereof in the presence of the instrumental witnesses, and (3) the latter witnesses witnessed and signed the will and all the pages in the presence of the testator and of each other
6) Acknowledged before a notary public by the testator and witnesses
Who may be a witness (Art. 820)
Any person:
1) Of sound mind
2) 18 or more
3) Not blind, deaf or dumb
4) Able to read and write
Those disallowed from being a witness (Art. 821)
1) Those not domiciled in the PH
2) Those convicted of falsification of a document, perjury or false testimony
Those incapable of succeeding (Art 1027).
1) Priest who heard last confession/minister that extended spiritual aid;
2) The above’s relatives within the 4th degree or the church they belong to
3) Guardian with respect to their ward before the final account of guardianship had been approved; EXC when they are family to the ward
4) Any attesting witness to the execution; and their spouse, parents or children
5) Physician, nurse, health officer that took care of them in their last illness
6) Individuals, associations and corps. not permitted by law
What if testator is deaf or deaf-mute? (Art. 807)
1) Must personally read the will if able; or
2) Designate 2 persons to read and communicate it to him
What if testator is blind? (Art. 807)
1) Will shall be read to him twice (an attesting witness, then by the notary public)
Substantial compliance
Absent bad faith, forgery, fraud, or undue and improper pressure and influence
Probate of a holographic will (Art. 811)
1) At least 1 witness who knows the handwriting and signature of the testator. Must be an explicit declaration
2) If contested, need 3 witnesses
3) In the absence of witnesses, bring in expert testimony
What happens if there are insertions, alterations, cancellations or erasures in a holographic will? (Art. 814)
Testator must authenticate the same with his full signature
Attestation vs. Subscription
Attestation – witnessing the testator’s execution of the will to prove that the things needed to be done were indeed done and that the signature of the testator does in fact exist as a fact
Subscription – Signing of the witnesses’ names upon the same paper for the purpose of ID-ing the paper.
Azuela v. CA
1) No proper notarial acknowledgement
2) No number of pages in the attestation clause
3) Not signed by the witnesses in the attestation clause
Caponong-Noble v. Abaja
1) No need to state that you knew the language used
2) Don’t allow evidence aliunde to fill voids in an incomplete will
Acknowledgement
The act of one who has executed a deed in going before some competent officer or court and declaring it to be his act or deed.
Lee v. Tambago
A notary public, especially a lawyer,is bound to strictly observe these elementary requirements.
In re: Probate of Cosico
No to strict application of law.
Rule regarding the blind extended to the illiterate
Gonzales v. CA
It is enough that the qualifications enumerated in Article 820 of the Civil Code are complied with, such that the soundness of his mind can be shown by or deduced from
his answers to the questions propounded to him, that his age (18 years or more) is shown from his appearance, testimony, or competently proved otherwise, as well as the
fact that he is not blind, deaf or dumb and that he is able to read and write to the satisfaction of the Court, and that he has none of the disqualifications under Article 821 of the Civil Code.
Ajero v. CA
Issues presented for probate are:
(1) whether the instrument submitted is, indeed, the decedent’s 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 decedents
How to incorporate by reference any document or paper (Art. 827)
1) Document referred to is in existence at the time of the execution of the will
2) Will clearly described and identifies the same; stating also the number of pages thereof
3) Identified by clear and satisfactory proof as the document referred to therein
4) Signed by the testator and the witnesses on each and every page; except in case of voluminous books
Codicil vs. Document Incorporated by Reference
1) When executed
2) Manner of execution
3) Contents regarding prior will
4) Effect on will
Requisites for a valid incorporation
1) Its reference in the will must be distinct
2) Reference must indicate that the writing has already been made
Codicil (Art. 825)
A supplement or addition to a will made after the will’s execution, annexed, to be taken as a part thereof
Codicil vs. Subsequent will
If it only explains, alters or adds, then it is a codicil
1) When executed
2) Manner of execution
3) Contents with respect to prior will
4) Effect on prior will
