Substitution, Legacies, Devisees Flashcards
Substitution
The appointment of another heir that is meant to enter into inheritance in default of the original heir (Art. 857)
Substitution vs. Accretion
Accretion is the right by which, when 2 or more persons who are called to the same inheritance, that part assigned to him who cannot receive, is added to that of his co-heirs.
A substitute is preferred to an heir entitled to accretion.
Substitution vs. Accretion
Accretion is the right by which, when 2 or more persons who are called to the same inheritance, that part assigned to him who cannot receive, is added to that of his co-heirs.
A substitute is preferred to an heir entitled to accretion.
Effect of substitution (Art. 862)
GEN: Subject to the same charges and conditions
EXC:
1) If the testator expressly provides otherwise; or
2) The charge is personal to the original heir
Kinds of substitution (Art. 858)
1) Simple
2) Brief
3) Reciprocal
4) Fideicommisary
Simple substitution (Art. 859)
Testator designates 1 or more persons to substitute the heir or heirs.
When does simple substitution take place? (Art. 859)
1) When the original heir predeceases the testator;
2) When the heir repudiates the inheritance;
3) When the heir is incapacitated to succeed
Can substitution take place even when the original heir survives the testator?
YES. Because they may lose inheritance still by reason of 1) Repudiation or 2) Incapacity
How is the substitution extinguished?
1) Nullity of the will
2) Annulment of the institution of the heir
3) Predeceased
4) Repudiation
5) Incapacity
Brief substitution (Art. 860)
Form of substitution that includes all kinds of substitutions and all heirs.
When 2 or more persons substitute for one; or 1 substitutes for 2 or more
What happens to the substitute if only 1 of the instituted heirs dies before the testator?
GEN: No substitution because the condition for it did not get complied with. The share of the dead heir will go to legal succession or other heirs by right of accretion.
EXC: If the substitute is named for ANY or ALL heirs. If one dies, the substitute will be substituted for the share of that heir that died.
When does accretion take place? (Art. 1016)
1) When 2 or more heirs are called to the same inheritance; same portion; pro indiviso
2) One of the heirs predeceases the testator, renounces the inheritance or is incapacitated
Reciprocal substitution (Art. 861)
When heirs instituted in unequal shares are reciprocally substituted, the substitute shall acquire the share of the heir who dies.
If there are more than 1 substitute, they shall apportion the share of the deceased heir in proportion to what they have in the institution.
Fideicommissary (Art. 863)
The first heir (fiduciary) is granted the obligation to preserve and transmit to the 2nd heir the inheritance
Requisites for fideicommissary
1) The first heir is called into succession
2) The first heir has the obligation to preserve and transmit the same
3) There is a 2nd heir to whom the property is to be transmitted
Can a fiduciary alienate the inheritance?
Only to the 2nd heir. He has only right of enjoyment.
What if the testator merely names an heir and says that if such heir should die a 2nd heir shall succeed?
This is simple substitution only; to be effective only if the 1st heir predeceases the testator
What if the testator provides that the 1st heir shall enjoy the property during his life, and upon his death, it will pass to another designated heir?
Merely a legacy of the usufruct that terminates upon death of the legatee.
What if the testator permits the 1st heir to dispose the property and designates others to succeed to what is left at the death of the 1st heir?
Still simple substitution since no obligation to preserve and transmit.
Requisites for the 2nd heir
1) Must not be beyond 1 degree from the original heir
2) Must be living at the time of the testator’s death
What are allowable deductions from the inheritance by the fiduciary? (Art. 865)
1) Legitimate expenses - For acquisition and preservation
2) Credits; and
3) Improvements - Necessary or useful expenses
How to make a fideicommissary substitution express?
1) Indicate the substitution by its name; or
2) Expressly impose upon the 1st heir the absolute obligation to deliver the property to the 2nd heir
Right of the fideicommissary
1) Fiduciary – Right of usufruct
2) 2nd heir – Naked ownership (Ownership of bare title)
Fideicommissary substitutions that shall have no effect (Art. 867)
1) Those not made in an express manner;
2) Those that contain a perpetual prohibition (or even temporary) when they go against Art. 863 or the 20-year rule
3) Those that impose an obligation on the heir to pay to various persons successively, an income or pension beyond the limits imposed by Art. 863
4) Those that leave property to a heir so that he may apply or invest it according to secret instructions by the testator
