I.

Atty. Juan Ramirez prepared a Last Will and Testament for a client. The Attestation
Clause of this Last Will and Testament fails to state that the testator signed in the
presence of the witnesses and that the witnesses signed in the presence of the
testator and of one another. Other than this defect, the Last Will and Testament
complies with all the technical requirements set by Law. Upon the death the testator,
an heir then submitted this Last Will and Testament for probate in your court. As
the Judge, will you grant or deny probate to the foregoing Last Will and Testament?

SUGGESTED ANSWER:

As judge, I would deny the probate of the will.

Under the third paragraph of Article 805, such a clause, the complete lack of which
would result in the invalidity of the will, should state (1) the number of the pages
used upon which the will is written; (2) that the testator signed, or expressly caused
another to sign, the will and every page thereof in the presence of the attesting
witnesses; and (3) that the attesting witnesses witnessed the signing by the testator
of the will and all its pages, and that said witnesses also signed the will and every
page thereof in the presence of the testator and of one another.

The phrase "and he has signed the same and every page thereof, on the spaces
provided for his signature and on the left hand margin," obviously refers to the
testator and not the instrumental. witnesses as it is immediately preceded by the
words "as his Last Will and Testament." On the other hand, although the words "in
the presence of the testator and in the presence of each and all of us" may, at first
blush, appear to likewise signify and refer to the witnesses, it must, however, be
interpreted as referring only to the testator signing in the presence of the witnesses
since said phrase immediately follows the words "he has signed the same and every
page thereof, on the spaces provided for his signature and on the left hand margin."
What is then clearly lacking, in the final logical analysis, is the statement that the
witnesses signed the will and every page thereof in the presence of the testator and
of one another.
It is our considered view that the absence of that statement required by law is a
fatal defect or imperfection which must necessarily result in the disallowance of the
will that is here sought to be admitted to probate. Petitioners are correct in pointing
out that the aforestated defect in the attestation clause obviously cannot be
characterized as merely involving the form of the will or the language used therein
which would warrant the application of the substantial compliance rule.

Source: Art. 805 of the NCC & Caneda V. CA, GR. 103554

II.

Mr. X died due to a bus accident, he was survived by his estranged wife and his
parents. The bus insurer paid 18, 500 to the wife by virtue of an extra judicial
settlement wherein the wife agreed not to prosecute the bus owner for her
husband’s death. She executed a “Release of Claim”. Thereafter, Mr. X’s parents
filed a suit for damages against the bus owner.

The lower court dismissed the complaint holding that the payment to Mr. X’s wife
extinguished any claim against the bus owner for the death of Mr. X since his wife
and her child are the preferred heirs and successor’s-in interest of Mr. X. After it
was established that the bus owner have paid the claim to the wife, is the wife
entitled to such payment?

1
SUGGESTED ANSWER:

Yes, the wife is entitled to the payment.

Article 1240 of the Civil Code of the Philippines enumerates the persons to whom
payment to extinguish an obligation should be made.

Art 1240. Payment shall be made to the person in whose favor the obligation has
been constituted, or his successor in interest, or any person authorized to receive
it.
Certainly there can be no question that Alicia and her son with the deceased are the
successors in interest referred to in law as the persons authorized to receive
payment. The Civil Code states:

Article 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 decendants;
3. The widow or widower;
4. Acknowledged natural children and natural children by legal fiction;
5. Other illegitimate children referred to in Article 287.

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.

Article 985. In default of legitimate children and descendants of the deceased, his
parents and ascendants shall inherit from him, to the exclusion of collateral
relatives.

It is patently clear that the parents of the deceased succeed only when the latter
dies without a legitimate descendant. On the other hand, the surviving spouse
concurs with all classes of heirs. In the case at bar, the bus insurer acted correctly
in settling their obligation with Mr. X’s wife as the widow of X and as the natural
guardian of their child. Mere estrangement is not a legal ground for the
disqualification of a surviving spouse as an heir of the deceased spouse.

SOURCE: Jose Baritua vs. CA and Nacario, G.R. No. 82233 March 22, 1990

III.

In his Last Will and Testament, Packie gave 1/10th of his estate to his concubine,
Crista, out of gratitude for her services. In order to conceal the disposition, Packie
instituted a fideicommissary substitution instituting his best friend, Freddie, to be
the first heir with the duty to preserve and transmit the inheritance to Crista within
ten (10) months after the finality of the probate of the Last Will and Testament.
Freddie is Crista’s father. Is the Last Will and Testament bearing the fideicommissary
substitution in this case valid?

SUGGESTED ANSWER:

No, the fideicommissary substitution is invalid.

Under Art. 863 of the NCC the following are the requisites for a valid fideicommissary
substitution:
1. It must be expressly made;

2
2. There must be a first heir (fiduciary) who is to take the property upon the death
of the testator;
3. There must be a Second heir (fideicommissary) who is one degree from the First
heir who will take the property after the specified period or upon the death of the
fiduciary;
4. The fiduciary must preserve the property and transmit it after the lapse of the
period to the fideicommissary;
5. Both the fiduciary and the fideicommissary must be living and must be qualified
to be an heir at the time of the death of the testator.
6. Substitution must not burden the legitime of the compulsory heirs.

Further provided, under Art. 1028 of the NCC, that the prohibitions mentioned in
Article 739, concerning donations inter vivos shall apply to testamentary
prohibitions:

Art. 739. The following donations shall be void:

1. Those made between persons who were guilty of adultery or concubinage at the
time of the donation. Xxx

In the present case, the 5th requisite is absent. In order for a fideicommissary
substitution to be valid, both the fiduciary and the fideicommissary must be qualified
to be an heir at the time of the death of the testator. Cleary, the fideicommissary is
a concubine which cannot be validly instituted as an heir being an unworthy heir.
Determination by judicial conviction is not required. (Atty. Tequillo)

Hence the fideicommissary substitution is invalid.

IV.
X died in a work-related accident while he was employed as an electrician by ABC
Corp. He was enrolled under the government’s Employees’ Compensation Program
(ECP). Since X was childless and unmarried, petitioner Y, X’s biological mother and,
allegedly, sole remaining beneficiary, filed a claim for death benefits with the SSS.
However, SSS denied the claim, stating that the petitioner is not considered as the
parent of X as he was legally adopted by Z, X’s great grandfather, therefore Y cannot
be considered as X’s beneficiary because she is not the deceased’s legitimate parent.
Z, however, already died in 1987, less than three years since the decree of X’s
adoption became final when X was still a minor. Does Y, the biological mother,
qualify as the deceased’s dependent parent and, thus, entitled to the death benefits?

SUGGESTED ANSWER:

No, the mother is not qualified as the deceased’s dependent parent.

Sec. 16 of R.A. No. 8552 or the Domestic Adoption Act of 1998 provides that except
in cases where the biological parent is the spouse of the adopter, all legal ties
between the biological parent(s) and the adoptee shall be severed and the same
shall then be vested on the adopter.
Sec. 18 of R.A. No. 8552 or the Domestic Adoption Act of 1998 provides that in legal
and intestate succession, the adopter(s) and the adoptee shall have the reciprocal
rights of succession without distinction from legitimate filiation. However, if the
adoptee and his/her biological parent(s) had left a will, the law on testamentary
succession shall govern.

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In this case, X was adopted by Z. Thus, applying the provisions above, Y can no
longer inherit from X since all legal ties was severed between her and X. It is Z, the
adopter, who is qualified to inherit from X. However, he cannot inherit from X since
he predeceased him.

ALTERNATIVE ANSWER:
Yes, the mother is qualified as the deceased’s dependent parent.
It is settled in the case of Bartolome vs. SSS (2014), the Supreme Court held that
even though parental authority is severed by virtue of adoption, the ties between
the adoptee and the biological parents are not entirely eliminated. To demonstrate,
the biological parents, in some instances, are able to inherit from the adopted, as
can be gleaned from Art. 190 of the Family Code:
Art. 190. Legal or intestate succession to the estate of the adopted shall be governed
by the following rules:
xxx
(2) When the parents, legitimate or illegitimate, or the legitimate ascendants of the
adopted concur with the adopter, they shall divide the entire estate, one-half to be
inherited by the parents or ascendants and the other half, by the adopters; xxx
(6) When only collateral blood relatives of the adopted survive, then the ordinary
rules of legal or intestate succession shall apply.
Moreover, John, in his SSS application, named petitioner as one of his beneficiaries
for his benefits under RA 8282, otherwise known as the "Social Security Law."
In the case at bar, even if X was adopted by Z, Y can still inherit from X since the
ties between the adoptee and his biological parents are not entirely eliminated.

NOTE:
The facts of this case are the same with the case of Bartolome vs. Social Security
System, G.R. No. 192531, November 12, 2014. In this case, the Supreme Court, in
obiter dictum, held that even though parental authority is severed by virtue of
adoption, the ties between the adoptee and the biological parents are not entirely
eliminated and that biological parents, in some instances, are able to inherit from
the adopted, citing the provision of Art. 190 (2) of the Family Code.The foregoing,
however, no longer appears to be true under the Domestic Adoption Act. The latter
law simply provides that “if the adoptee and his/her biological parent(s) had left a
will, the law on testamentary succession shall govern.” The inclusion of this provision
in the Domestic Adoption Act is merely to emphasize that under the new law, the
adopted and his/her parents by nature may only succeed from each other by way
of testamentary succession. In other words, the intention under the Domestic
Adoption Act is to extinguish the reciprocal rights of succession that exist between
the adopted and his/her parents by nature including the right to the legitime and
rights arising from legal or intestate succession. This is further confirmed by Section
16 of the Domestic Adoption Act which states that “all legal ties between the
biological parent(s) and the adoptee shall be severed and the same shall then be
vested on the adopter.”

In the case at bar, the bus insurer acted correctly in settling their obligation with
Mr. X’s wife as the widow of X and as the natural guardian of their child. Mere
estrangement is not a legal ground for the disqualification of a surviving spouse as
an heir of the deceased spouse.

SOURCE: Jose Baritua vs. CA and Nacario, G.R. No. 82233 March 22, 1990

V.

You are the testator with three (3) legitimate children: Orange, Apple, and Lemon,
a wife named Ligaya, parents named Pa and Ma, an illegitimate child named
Gemelina, a brother named Brad and a sister named Angie. Since your wife Ligaya

4
is affluent, you decided to leave your illegitimate child, Gemelina, as much of your
estate as legally possible. Your net estate consists of cash in the amount of
PHP1,200,000.00 and all aforementioned relatives are still living. Who are your
compulsory heirs? Furthermore, who are all the testator’s potential compulsory heirs
in the direct line? Lastly, how much of your estate can you ultimately set aside for
Gemelina, your illegitimate daughter, without violating your compulsory heirs’
legitimes?

SUGGESTED ANSWER:

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 decendants;
3. The widow or widower;
4. Acknowledged natural children and natural children by legal fiction;
5. Other illegitimate children referred to in Article 287.

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 this case, the compulsory heirs are: Legitimate Children – Orange, Apple, and
Lemon; Wife – Ligaya; Illegitimate child – Gemilina. The potential compulsory heirs
in the direct line are the parents – Pa and Ma. The parents are only secondary
compulsory heirs and they cannot inherit if the primary compulsory heirs (legitimate
children) are alive. Brother Brad and sister Angie are not compulsory heirs since
they are not included in the enumeration under Article 887 of the Civil Code.

The testator’s estate shall be distributed as follows:

P600,000.00 — legitime to be divided equally between Orange, Apple, and Lemon
as the legitimate children. Each will be entitled to P200,000.00. (Art. 888, Civil
Code)
P100,000.00 — share of Gemelina the illegitimate child. Equivalent to 1/2 of the
share of each legitimate child. (Art. 176, Family Code)
P200,000.00 — Ligaya the wife. Her share is equivalent to the share of one
legitimate child. (Art. 892, par. 2, Civil Code)
Therefore, the remaining balance of P300,000.00 is the free portion which can be
given to the illegitimate child Gemelina as an instituted heir. (Art. 914, Civil Code)
If so given by the decedent, Gemelina would receive a total of P400,000.00.

VI.
X dies intestate on January 2, 1999 leaving as heirs his siblings namely A
(represented by her daughters E, F and G), C and D. In a petition for Judicial
Settlement of Intestate Estate and Issuance of Letters of Administration, they
alleged that a parcel of land (donated property), which was transferred by the
decedent to A might be considered as an advance legitime of A, to which C and D
assailed. The probate court found the Deed of Donation valid in light of the
presumption off validity of notarized documents. It thus went on to hold that it is
subject to collation. The probate court thereafter partitioned the properties of the
intestate estate. Is the property donated subject to collation?

SUGGESTED ANSWER:

No, the property donated is not subject to collation. Art. 1061 of the New Civil Code
provides that every compulsory heir, who succeeds with other compulsory heirs,

5
must bring into the mass of the estate any property or right which he may have
received from the decedent, during the lifetime of the latter, by way of donation, or
any other gratuitous title, in order that it may be computed in the determination of
the legitime of each heir, and in the account of the partition. However, it is settled
in the jurisprudence that collation takes place when there are compulsory heirs, one
of its purposes being to determine the legitime and the free portion. If there is no
compulsory heir, there is no legitime to be safeguarded.

In this case, the decedent does not have any primary, secondary, or concurring
compulsory heirs. He was only survived by his siblings, who are his collateral
relatives and, therefore, are not entitled to any legitime that part of the testators
property which he cannot dispose of because the law has reserved it for compulsory
heirs.

The decedent not having left any compulsory heir who is entitled to any legitime, he
was at liberty to donate all his properties, even if nothing was left for his siblings-
collateral relatives to inherit. His donation to A, assuming that it was valid, is
deemed as donation made to a stranger, chargeable against the free portion of the
estate. There being no compulsory heir, however, the donated property is not
subject to collation.
Source: Arellano vs. Pascual, G.R. No. 189776, Dec. 15, 2010

VII.
In his Will, A provided as follows: “I bequeath to my nieces X, Y, and Z whatever
balance I have in BPI Savings Account No. 54321 at the time of my death at one-
third for each of them.” X died before A leaving her sons S and T as her only heirs.
When A died, he left a credit of Ninety Thousand (Php90,000.00) Pesos in his
account among other properties. A has surviving children N and M. At this point,
who would be entitled to the Thirty Thousand (Php30,000.00) Pesos that would have
corresponded to X under the will had he survived?
SUGGESTED ANSWER:

N and M would be entitled to the Thirty Thousand (Php30,000.00) Pesos that would
have corresponded to X under the will had he survived.

Under Article 956, NCC, if the legatee or devisee cannot or is unwilling to accept the
legacy or devise, or if the legacy or devise for any reason should become ineffective,
it shall be merged into the mass of the estate, except in cases of substitution and
of the right of accretion.

If X predeceased A, S and T will not inherit it because a legatee cannot be

represented. There is no right of representation with respect to a voluntary heir who
succeeds only by virtue of the will. There being no substitute and there being no
accretion under the facts represented, the legacy will be merged into the mass of
the estate and will therefore go to N and M, who is the nearest intestate heir, each
inheriting Fifteen Thousand (Php15,000.00) Pesos.

Source: Sample Problem ( page 448) , Wills and Succession by Paras

VIII.
Tom executed a last will and testament, which provides as follows: "I institute as
the only and universal heirs to all my property, my cousin Vicente and his daughter
Luz." Prior to the time of the execution of the will, Tom was already placed under
the care of Vicente, as guardian. Four days after the will was made, Vicente died

6
without having presented his final accounts as guardian. Thereafter, Tom died and
his will was subsequently admitted to probate. Margarita, a cousin and the nearest
relative of Tom, now claims half of the estate which was intended for Vicente by
intestate succession as next of kin and nearest heir. She argued that under
paragraph 4 of Article 960 of the Civil Code, intestate succession occurs when the
heir instituted is disqualified to succeed, while, under the last provision in paragraph
2 of Article 1016, accretion occurs when one of the persons called to inherit under
the will is disqualified to receive the inheritance and contends that the disability of
Vicente was such as to bring the case under Article 960 rather than Article 1016. On
the other hand, Luz claims the same by right of accretion and in the character of
universal heir of Tom.

(a) Does the disqualification of Vicente pertain to his incapacity to succeed or to his
incapacity to receive inheritance?

(b) Who has the better right over the one-half of the estate of Tom?
SUGGESTED ANSWER:
(a) The provision made in the will of Tom in favor of Vicente was not any general
incapacity on his part, but a special incapacity due to the accidental relation
of guardian and ward existing between the parties.

Article 753 of the Civil Code which in effect declares that, with certain exceptions in
favor of near relatives, no testamentary provision shall be valid when made by a
ward in favor of his guardian before the final accounts of the latter have been
approved. This provision is of undoubted application to the situation before us.
A distinction is then drawn between incapacity to succeed and incapacity to take,
and it is contended that the disability of Vicente was such as to bring the case under
article 912 rather than 982. We are of the opinion that the case cannot be made to
turn upon so refined an interpretation of the language of the Code, and at any rate
the disability to which Vicente was subject was not a general disability to
succeed but an accidental incapacity to receive the legacy, a consideration
which makes a case for accretion rather than for intestate succession.

(b) Luz has the better right.

In playing the provisions of the Code it is the duty of the court to harmonize its
provisions as far as possible, giving due effect to all; and in case of conflict between
two provisions the more general is to be considered as being limited by the more
specific. As between articles 912 and 983, it is obvious that the former is the more
general of the two, dealing, as it does, with the general topic of intestate succession
while the latter is more specific, defining the particular conditions under which
accretion takes place. In case of conflict, therefore, the provisions of the former
article must be considered limited by the latter. Indeed, in subsection 3 of article
912 the provision with respect to intestate succession is expressly subordinated to
article 983 by the expression "and (if) there is no right of accretion." It is true that
the same express qualification is not found in subsection 4 of article 912, yet it must
be so understood, in view of the rule of interpretation above referred to, by which
the more specific is held to control the general. Besides, this interpretation supplies
the only possible means of harmonizing the two provisions. In addition to this, article
986 of the Civil Code affords independent proof that intestate succession to a vacant
portion can only occur when accretion is impossible.
Source: In the matter of the estate of Tomas Rodriguez, deceased. Manuel Torres,
special administrator, and Luz Lopez de Bueno vs Margarita Lopez (G.R. No. L-25966
November 01, 1926)

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 IX.
In order to allow his poorer friend, Pedro Tan, to obtain credit from METROCEBU
BANK, a rich man named John Gokongway executed an INDEMNITY AGREEMENT as
a surety and solidary obligor to the loans of Pedro Tan to METROCEBU BANK. As a
result of this INDEMNITY AGREEMENT, METROCEBU BANK granted the loan to Pedro
Tan. John Gokongway died. Pedro Tan defaulted in his loan to METROCEBU BANK,
who then filed a claim against the Estate of John Gokongway naming the latter’s
heirs as Party-Defendants, including John’s illegitimate son Willie. Willie filed a
MOTION TO DISMISS stating that METROCEBU BANK has no cause of action against
him since John Gokongway signed a strictly personal obligation to guarantee the
obligation of Pedro Tan. You are the Honorable Presiding Judge. Will you dismiss the
case?
SUGGESTED ANSWER:

No, As the presiding judge, I will not dismiss the case.

Under the present Civil Code (Article 1311), as well as under the Civil Code of 1889
(Article 1257), the rule is that —“Contracts take effect only as between the parties,
their assigns and heirs, except in the case where the rights and obligations arising
from the contract are not transmissible by their nature, or by stipulation or by
provision of law.”

While in our successional system the responsibility of the heirs for the debts of their
decedent cannot exceed the value of the inheritance they receive from him, the
principle remains intact that these heirs succeed not only to the rights of the
deceased but also to his obligations. Articles 774 and 776 of the New Civil Code (and
Articles 659 and 661 of the preceding one) expressly so provide, thereby confirming
Article 1311 already quoted.

“ART. 774. — Succession is a mode of acquisition by virtue of which the property,

rights and obligations to the extent of the value of the inheritance, of a person are
transmitted through his death to another or others either by his will or by operation
of law.”

“ART. 776. — The inheritance includes all the property, rights and obligations of a
person which are not extinguished by his death.”
In the case at bar, Mr. Gokongway was the surety of Pedro. The death of Mr.
Gokongway does not extinguish his obligation as a surety which is solidarity liable
of Pedro. The Creditor, can claim against the estate of Gokongway because the
obligation extends to the value of the inheritance, of a person are transmitted
through his death to another or others either by his will or by operation of law.

X.
Jay and Mary had three children: Joseph, Dan and Leo. Joseph, married to Joy had
one child named Josefa. Dan had two children named Danica and Rose. Leo had one
child named Leon. When Jay and Mary died, the three sons inherited 1/3 each of
their parent’s estate. Thereafter, the three sons died in an accident leaving no will.
Joseph’s share went to Joy and Josefa. One year later, Josefa died without a will
leaving her mother as sole heir. Two years after Josefa’s death, Joy died leaving her
sister Josephine. Josephine adjudicated the entire estate of Joy to herself. Danica,
Rose and Leon opposed on the ground that they are entitled to Joy’s estate as

8
reservatarios, being first cousins of Josefa from whom the property came. Are
Danica, Rose and Leon entitled to Joy’s estate?

SUGGESTED ANSWER:

No. Danica, Rose and Leon are not entitled to Joy’s estate.
Article 891 of the Civil Code on reserva troncal provides that the ascendant who
inherits from his descendant any property which the latter may have acquired by
gratuitous title from another ascendant, or a brother or sister, is obliged to reserve
such property as he may have acquired by operation of law for the benefit of
relatives who are within the third degree and belong to the line from which said
property came.

While it may appear that the properties are reservable in character, Danica, Rose
and Leon cannot benefit from reserva troncal. First, because Josephine, who now
holds the properties in dispute, is not the other ascendant within the purview of
Article 891 of the Civil Code and second, because the claimants are not Josefa’s
relatives within the third civil degree. The law requires that the
reservee/reservatarios must be within the third degree from the prepositus (Josefa)
and who belongs to the (linea o tronco) from which the property came and for whom
the property should be reserved by the reservor. In this case, they cannot be
considered as such as they are not relatives within the third degree of Josefa from
whom the properties came. Rather they are Josefa’s fourth degree relatives, being
her first cousins. First cousins of the prepositus are fourth degree relatives and are
not reservees or reservatarios.

They cannot even claim representation of their predecessors as Article 891 grants a
personal right of reservation only to the relatives up to the third degree from whom
the reservable properties came. The only recognized exemption is in the case of
nephews and nieces of the prepositus, who have the right to represent their
ascendants (fathers and mothers) who are the brothers/sisters of the prepositus
and relatives within the third degree.

9
Source: Mendoza vs. Delos Santos, G.R. No. 176422 March 20, 2013

XI. (A)
A died a bachelor with no children and a net estate of 10 Million Pesos. Upon death,
he also had no other relatives except his 5 brothers: X, Y and Z, who were legitimate
children of his parents, and R and S who were illegitimate children of A’s father by
another woman. X died 1 year before A’s death and is survived by his only son X1.
Y has a son by the name of Y1; Y, however, renounced his inheritance from A. Z
survived A. R and A were best friends as R survived A. S predeceased A; but he left,
as a compulsory heir, his wife, SW. Who are entitled to a portion in A’s estate, as
the latter’s intestate heirs at the time of his death?

SUGGESTED ANSWER:

If there are two or more legitimate children in an intestate succession the following
formula should be used for the computation of their respective shares:

Legend:
• X = 1 Legitimate Child
• ½ x= 1 Illegitimate child

Formula:
1)
TOTAL ESTATE
----------------------- = SHARE OF ONE LEGITIMATE CHILD
TOTAL NUMBER OF X
2)
SHARE OF ONE LEGITIMATE CHILD
-------------------------------------------- = SHARE OF AN ILLEGITIMATE CHILD
2
COMPUTATION:
TOTAL NUMBER OF X = X+X+X+1/2x + ½ X =4x

Share of Legitimate Child: Share of Illegitimate Child:

10 Million (Total Estate) 2.5 Million (share of Legitimate child)
------------------------------ = 2.5 Million --------------------------------------------- =1.25
4x (Total Number of x) 2
(the share of illegitimate child is ½ of the share of a
legitimate child)

X Y Z R S predeceased
(Predeceased) (Renounced) but with
compulsory
heir - wife SW
X1 Y1

Heir 10 Million Pesos Total Inheritance

Full Blood:
X Predeceased
X1by representation 2.5 Million +1.25 Million
from the renounced share of
Y. 3.75 Million

10
 Y Renounced
Y1 Excluded Article 977. 0 0

Accretion by Article 1018 3.75Million

always accrue to co-heirs

Z 2.5+1.25 from the renounced

share of Y.

Half Blood
R 1.25 +1.25 from the share of 2.5 Million
S by virtue of accretion

S predeceased SW has no right

of representation by virtue of 0 0
Article 972.

XI. (B)

In the Last Will and Testament of A, a codicil was appended thereto, instituting X as
a devisee of a parcel of land. In the said codicil, X was obliged to deliver 100 piculs
of sugar yearly to M until the latter dies. Should X die, his successors-in-interest
shall have the same obligation to M, and non-compliance with said obligation entitles
M to seize the parcel of land and shall turn it over to A’s near descendants. X died
and was survived by Y. M filed a complaint against Y to enforce the provisions of the
subject codicil. The complaint alleged that Y violated the conditions of the codicil for
the failure to deliver the 100 piculs of sugar yearly to M. The trial court then ruled
that the institution of X under the subject codicil is in the nature of a modal
institution and ordered Y, as heir of X, to reconvey the title of the lot, together with
its fruits and interests, to A’s near descendants. Was the trial court correct in
ordering the reconveyance of the title of the lot to A’s near descendants?

SUGGESTED ANSWER:

Yes the trial court is correct in ordering the reconveyance of the title of the lot to
A’s near descendants.

Substitution is the designation by the testator of a person or persons to take the

place of the heir or heirs first instituted. Under substitutions in general, the testator
may either (1) provide for the designation of another heir to whom the property
shall pass in case the original heir should die before him/her, renounce the
inheritance or be incapacitated to inherit, as in a simple substitution, or (2) leave
his/her property to one person with the express charge that it be transmitted
subsequently to another or others, as in a fideicommissary substitution. Moreover
another classification of substitution is called modal substitution. In a modal
institution, the testator states (1) the object of the institution, (2) the purpose or
application of the property left by the testator, or (3) the charge imposed by the
testator upon the heir. A "mode" imposes an obligation upon the heir or legatee but
it does not affect the efficacy of his rights to the succession. It is different from
conditional testamentary disposition because in the latter the condition must happen
or be fulfilled in order for the heir to be entitled to succeed the testator. The condition
suspends but does not obligate; and the mode obligates but does not suspend. To
some extent, it is similar to a resolutory condition.

In the case under scrutiny, it can be gleaned unerringly that the testatrix intended
that subject property be inherited by X. It is likewise clearly worded that the testatrix

11
imposed an obligation on the said instituted heir and his successors-in-interest to
deliver one hundred piculs of sugar to the herein private respondent, M, during the
lifetime of the latter. However, the testatrix did not make X inheritance and the
effectivity of his institution as a devisee, dependent on the performance of the said
obligation. It is clear, though, that should the obligation be not complied with, the
property shall be turned over to the testatrix's near descendants. The manner of
institution of X under subject Codicil is evidently modal in nature because it imposes
a charge upon the instituted heir without, however, affecting the efficacy of such
institution.

Thus the failure to deliver the 100 piculs of sugar yearly to M gives rise to the seizure
of the property to the nearest ascendant of M who is A in this case.

Source: Rabadilla vs Conscoluella 334 SCRA 52 GR No. 113725

XII.
F and M have 1 child by the name of C1. F inherited from his parents a piece of
property in Ma. Luisa Park worth 1 Million Pesos. In 1990, F donated the Ma. Luisa
property to C1; then F died, survived only by his wife, M, his legitimate child, C1,
and by his legitimate brothers G, H, and I. In 1992, C1 also died. C1 is survived
solely by his mother, M. In 1992, M decided to sell the property to Sta. Lucia Realty.
G, H, and I sued M and Sta. Lucia for injunction, stating that M has no legal capacity
to sell the property on the ground of reserva troncal. You are the Honorable
Presiding Judge. Does reserva troncal operate in this case? Furthermore, as the
honorable presiding judge, will you grant the Plaintiffs’ prayer for Injunction?
Explain.

SUGGESTED ANSWER:

Yes, Reserva Troncal operates in this case. As a Presiding Judge, I will grant the
Plaintiff's Prayer for Injunction.

Article 891 of the Civil Code provides, the ascendant who inherits from his
descendant any property which the latter may have acquired by gratuitous title from
another ascendant, or a brother or sister, is obliged to reserve such property as he
may have acquired by operation of law for the benefit of relatives who are within
the third degree and belong to the line from which said property came. There are
three (3) lines of transmission in reserva troncal. The first transmission is by
gratuitous title, whether by inheritance or donation, from an
ascendant/brother/sister to a descendant called the prepositus. The second
transmission is by operation of law from the prepositus to the other ascendant or
reservor, also called the reservista. The third and last transmission is from the
reservista to the reservees or reservatarios who must be relatives within the third
degree from which the property came.

In the present case, although M is the full or absolute owner of the property, such
ownership is subject to a resolutory condition. The law is designed to protect the
rights of the relatives to which the property originated, by assuring them the return
of such property.

XIII.

Clark died leaving behind a net estate consisting of cash in the amount of 10 Million
Pesos. He also left behind 2 legitimate children, 1 surviving spouse, and 10

12
illegitimate children. As their inheritance how much should each of Clark’s
illegitimate children get?

SUGGESTED ANSWER:

Each of Clark’s illegitimate children will get Php 250,000.00

Article 999 of the NCC provides when the widow or widower survives with legitimate
children or their descendants and illegitimate children or their descendants, whether
legitimate or illegitimate, such widow or widower shall be entitled to the same share
as that of a legitimate child. However, this would not apply when it impairs the
legitime of the compulsory heirs.

Here, Art. 999 cannot be applied for the legitimes of the legitimate children and the
surviving spouse will be impaired. Hence, the total share of the illegitimate children
would be confined to the free portion of the estate after respecting the legitimate
children’s legitime and the surviving spouse’s legitime.

Each legitimate child shall be entitled to Php 2,500,000 in accordance with their
legitime which is ½ of the net estate of Clark. The legitime of the surviving spouse
shall be the same as to one (1) legitimate child – Php 2,500,000 from the free
portion of the estate. Therefore, the remaining share of the free portion shall be
divided equally by the ten illegitimate children which is Php 250,000.00
Source: Sample Problem (page 514) , Wills and Succession by Paras

Illustration: 10 Million If Art. 999 is Principle on Legitime:

applied: from the total net state Net estate divided into 2: Legitime and
LC- ½ divided by No.; Free Portion
SS- same with 1 LC; LC- ½; (Legitime) divided by No
IC- ½ of 1 LC SS- same with 1 LC;
IC- ½ of 1 LC

Each LC gets 1,250,000 = 2, 500, 000 Each LC gets 2, 500,000 = 5, 000, 000
SS gets 1,250,000 = 1, 250, 000 SS gets 2, 500,000 = 2, 500, 000
IC gets 625, 000 (10) = 6, 250, 000 IC gets 250, 000 (10) = 2 ,500, 000
** the legitime of LC and SS is clearly
impaired as the share of IC is more than
the share of LC

13
 XIV.

MM died single and without any ascending nor descending heirs as her
parents, grandparents and siblings all predeceased her. Her only surviving
relatives were her first cousins A, B, C, and DD. However, MM lived together
with SS, her life-long companion since 1929; SS and SS’ nephews were the
ones who took care of MM until the very end.

Before her death, MM executed a last will and testament and designated SS
as her sole executor. MM likewise bequeathed her real properties to SS’
nephews and she also left all her personal properties to SS.

DD contested the will on the following grounds: that it was fatally defective
for the reason that it’s attestation clause states that the will is composed of 3
pages while in truth and in fact it consisted of only 2 pages, as the attestation
clause is not part of the notarial will; and, that MM was of unsound mind since
at the time of the execution of the will, MM was already weak and sickly and
dependent upon SS; consequently, it affected her freedom and willpower to
decide on her own. Does DD have the right to claim any part of the decedent’s
estate based on her grounds/opposition to the probate?
SUGGESTED ANSWER:

No, she does not have the right because the will is not defective.

Article 809 of the Civil Code which reads:

"In the absence of bad faith, forgery or fraud, or undue [and] improper
pressure and influence, defects and imperfections in the form of attestation or
in the language 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."

Source: Samaniego-Celada v Abena, G.R. No. 145545, June 30, 2008 – Sir
Paul’s Assigned Case Letter WW

Moreover, according to Article 799 of the Civil Code, the three things that the
testator must have the ability to know to be considered of sound mind are as
follows: (1) the nature of the estate to be disposed of; (2) the proper objects
of the testator’s bounty; and (3) the character of the testamentary act. Mere
weakness of mind or partial imbecility from disease of body or from age- does
not render a person incapable of making a will. A weak of feebleminded person
may make a valid will, provided he has understanding and memory sufficient
to enable him to know what he is about to do and how or whom he is disposing
of his property. To constitute a sound and disposing mind, it is not necessary

14
that the mind be unbroken or unimpaired or unshattered by disease or
otherwise.

Thus, DD does not have the right to claim over MM’s estate based on the
grounds of his opposition.

XV.

Eva died intestate without issue, leaving Two Million Pesos. She was survived
by her brother, Frank, and her niece, Teresita, the only daughter of her only
other sibling and sister who predeceased Eva. A year later, Frank died survived
by his wife, Sharon, and one (1) illegitimate child, Richard. Sharon and
Teresita executed an Extrajudicial Settlement of the Estate of Eva. Richard
sued to contest the validity of this Extrajudicial Settlement of Estate on the
ground of his exclusion thereto. He claimed a right to a portion of the estate
of Eva, on the ground of his illegitimate filiation to Frank. Sharon moved to
dismiss her complaint on the basis of Article 992 of the New Civil Code, which
bars illegitimate children from claiming ab intestato inheritance rights to the
estate of the legitimate relatives of their parents. If you were the Honorable
Presiding Judge, would you dismiss the case?

SUGGESTED ANSWER:

No. Under the Law, Article 992 of the New Civil Code is not applicable because
involved here is not a situation where an illegitimate child would inherit ab
intestato from a legitimate sister of his father, which is prohibited by the
aforesaid provision of law. Rather, it is a scenario where an illegitimate child
inherits from his father, the latter's share in or portion of, what the latter
already inherited from the deceased sister, Eva. The law in point is Article 777
of the New Civil Code, which provides that the rights to succession are
transmitted from the moment of death of the decedent.
Since Eva died ahead of her brother Frank, the latter inherited a portion of the
estate of the former as one of her heirs. Subsequently, when Frank died, his
heirs, namely: his spouse, Sharon, and illegitimate child, Richard, inherited
Frank’s share in the estate of Eva. It bears stressing that Richard does not
claim to be an heir of Eva by right of representation but participates in his own
right, as an heir of the late Frank, in the latter's share (or portion thereof) in
the estate of Eva.

Source: Blanquita E. Dela Merced, et. al., vs. Joselito P. Dela Merced, G.R.
No. 126707, February 25, 1999.

15
 XVI.

Lot A is registered in the name of F. F died on 1941 with a holographic will

despite having no children. One of the heirs is B, Father of D. B died on 1960.
D, on 1975, sold Lot A to L. It was only in 1994 where there was an execution
of a Deed of Extra-Judicial Succession with Partition made by the heirs of F.
Lot A was imparted to D. D, on 1995, sold a half of Lot A to E, his nephew.
Then, on 1996, the remaining was registered under his own name. Is the sale
to L valid?

SUGGESTED ANSWER:

No, the sale is null and void for lack of capacity to sell on the part of D.
Article 1347 of the Civil Code provides, "No contract may be entered into upon
future inheritance except in cases expressly authorized by law. The law applies
when the following requisites concur: (1) the succession has not yet been
opened; (2) the object of the contract forms part of the inheritance; and (3)
the promissor has, with respect to the object, an expectancy of a right which
is purely hereditary in nature.

In this case, at the time the deed was executed, F’s will was not yet probated.
The land still formed part of the inheritance of his father from the estate of F.
D was not yet the owner of the property at the time of sale. He had only a
mere inchoate hereditary right therein. D became the owner of the said
property only on 1994, the time of execution of the Deed of Extrajudicial
Succession with Partition by the heirs of F, when the said parcel of land was
adjudicated to him.

Source: CABALU vs. SPS. TABU, G.R. No. 188417, September 24, 2012

XVII.
Vitaliano and Marither Vitug, spouses, entered into a “Survivorship
Agreement” pertinent to a Time Deposit Account in the amount of 10 Million
Pesos deposited with Alpha Bank, wherein they stipulated that, “after the
death of either or any of us shall belong to and be the sole property of the
survivor or survivors, and shall be payable to and collectible or withdrawable
by such survivor or survivors.” Mrs. Vitug died without any children or
grandchildren. Her father, however, survived her. In the proceedings to
judicially settle Marither Vitug’s estate, Vitaliano Vitug claimed full ownership
of the 10 Million Pesos Bank Account, and that it would not be covered by

16
Marither’s estate on account of the “Survivorship Agreement.” Marither’s
father, on the other hand, complained that since Marither intended for her
share in the Time Deposit Account to be conveyed mortis causa to Vitaliano,
then, the Survivorship Agreement should be understood as a Last Will and
Testament, which must conform to the strict requirements of Article 805 of
the Civil Code. Otherwise, the document is void. You are the Honorable
Presiding Judge. In whose favor would you rule?

SUGGESTED ANSWER:

I will not rule in favor of any of the parties.

In the case Sps. Vitug vs Court of Appeals where similar facts are given, the
Supreme Court ruled that the Survivorship Agreement is in the nature of an
aleatory contract whereby one or both of the parties reciprocally bind
themselves to give or to do something in consideration of what the other shall
give or do upon the happening of an event which is to occur at an
indeterminate time or is uncertain, such as death. The said agreement is per
se not contrary to law and thus is valid unless its operation or effect may be
violative of a law such as in the following instances: (1) it is used as a mere
cloak to hide an inofficious donation; (2) it is used to transfer property in fraud
of creditors; or (3) it is used to defeat the legitime of a compulsory heir.

In the instant case, none of the foregoing instances were present.

Consequently, the Court upheld the validity of the survivorship agreement
entered into by the spouses Vitug. As such, Vitaliano, being the surviving
spouse, acquired a vested right over the amounts under the savings account,
which became his exclusive property upon the death of his wife pursuant to
the survivorship agreement. Thus, the funds of the savings account are not
conjugal partnership properties and not part of the estate of the decease
Mariter.

XVIII.
In 1968 X died leaving his estate to his sole heirs, W and S, the widow and
their son. In 1970, W and S executed a Deed of Extrajudicial Settlement of
the Estate of X dividing and adjudicating to them all the property belonging to
the estate of S. After eleven years from the time the said deed of extrajudicial
settlement was executed, W executed a Quitclaim Deed assigning,
transferring and conveying to her son S her undivided one-half interest on all

17
the parcels of land subject matter of the said deed of extrajudicial settlement.
Did W validly repudiated her right to inherit from X?

SUGGESTED ANSWER:

No, W did not validly repudiated her right to inherit from S.

Article 1056 of the Civil Code provides: The acceptance or repudiation of an

inheritance, once made is irrevocable and cannot be impugned, except when
it was made through any of the causes that vitiate consent or when an
unknown will appears.

In the case at bar, W has accepted her inheritance when she and S executed
an Extrajudicial Settlement of Estate. Nothing on record shows that W’s
acceptance of her inheritance from X was made through any of the causes
which vitiated her consent nor is there any proof of the existence of an
unknown will executed by X.

Source: REPUBLIC OF THE PHILIPPINES vs DAVID REY GUZMAN, G.R. No.

132964. February 18, 2000

XIX.
Private respondent-minors A and B, represented by M their mother, filed a
petition for letters of administration before the Regional Trial Court of Makati
Branch 138. A and B alleged that they are the duly acknowledged illegitimate
children of P who died intestate leaving an estate valued at 10,000,000.00.
P's known heirs are S (surviving spouse) and children U, W, X, Y, and Z. They
prayed for the appointment of a regular for the settlement of P's estate. They
likewise prayed that in the meantime U, the son of the deceased, be appointed
as special administrator.

In his opposition, U prayed for the dismissal of the petition. He asserted that
his deceased father left no debts and that his estate can be settled without
securing letters of administration pursuant to Section 1 Rule 74 of the Rules
of Court. U and his co-heirs alleged that A and B's claim has been paid, waived,
abandoned or otherwise extinguished by reason of M's Release and Waiver of
Claim stating that in exchange for the financial and educational assistance
received from U. M, A and B discharge the estate of P from any and all
liabilities.

18
Is A and B precluded from claiming their successional rights due to the
execution of Release and Waiver of Claims by M?

SUGGESTED ANSWER:

No, A and B are not precluded from claiming their successional rights for 3
reasons.
First, there was no waiver of hereditary rights. The Release and Waiver of
Claim does not state with clarity the purpose of its execution. The document
did not specifically mention private respondents’ hereditary share in the
estate, it cannot be construed as a waiver of successional rights. To be valid
and effective, a waiver must be couched in clear and unequivocal terms which
leave no doubt as to the intention of a party to give up a right or benefit which
legally pertains to him. A waiver may not be attributed to a person when its
terms do not explicitly and clearly evince an intent to abandon a right.

Second, parents and guardians may not repudiate the inheritance of their
wards without judicial approval. This is because repudiation amounts to an
alienation of property which must pass the court’s scrutiny in order to protect
the interest of the ward. Not having been judicially authorized, the Release
and Waiver of Claim in the instant case is void.

Article 1044, NCC: Any inheritance left to minors or incapacitated persons

may be accepted by their parents or guardians. Parents or guardians may
repudiate the inheritance left to their wards only by judicial
authorization.

Third, waiver is the intentional relinquishment of a known right. Where

one lacks knowledge of a right, there is no basis upon which waiver of it can
rest. Ignorance of a material fact negates waiver, and waiver cannot be
established by a consent given under a mistake or misapprehension of fact.
Here, private respondents could not have possibly waived their successional
rights because they are yet to prove their status as acknowledged illegitimate
children of the deceased. Note that the claim of being illegitimate
children was only an allegation.

Source: Guy v. CA, GR 163707, 15 September 2006

19
 XX.

Katie sued her husband Tom for Legal Separation on the ground of the latter’s
repeated infidelity, praying, among others, for the Court to declare Tom as
unworthy to inherit from Kate’s estate worth 20 Million Pesos. Before she could
complete the presentation of her evidence, however, Katie died without issue.
She is survived by her mother, Dionisia. Katie’s counsel now filed a Motion to
substitute Dionisia for Katie in the latter’s Petition for Legal Separation. Tom
opposed. You are the Honorable Presiding Judge. How would you rule?

SUGGESTED ANSWER:

If I were the judge, I would dismiss the case.

An action for legal separation which involves nothing more than the bed-and-
board separation of the spouses is purely personal. The Civil Code of the
Philippines recognizes this by allowing only the innocent spouse (and no one
else) to claim legal separation; and by providing that the spouses can, by their
reconciliation, stop or abate the proceedings and even rescind a decree of
legal separation already rendered. Being personal in character, it follows
that the death of one party to the action causes the death of the action
itself — actio personalis moritur cum persona.

Further, “disqualification to inherit by intestacy from the innocent

spouse” (or any other changes in property relations, e.g., right to the
dissolution of the conjugal partnership of gains or of the absolute community
of property, the loss of right by the offending spouse to any share of the profits
earned by the partnership or community, or his disqualification to inherit by
intestacy from the innocent spouse as well as the revocation of testamentary
provisions in favor of the offending spouse made by the innocent one, all rights
and disabilities that, by the very terms of the Civil Code article, are vested
exclusively in the persons of the spouses) which is solely the effect of the
decree of legal separation cannot survive the death of the plaintiff if
it occurs prior to the decree.

Such matters are not those “not thereby extinguished” after a party dies,
under Section 17, Rule 3, of the Rules of Court, to warrant continuation of
the action through a substitute of the deceased party.

Sources: Sy v. Eufemio, GR L-30977, 31 January 1972; and Sta. Maria, Legal

Separation.

20
 XXI.

Dolphy executed a Notarial Last Will and Testament with the help of Atty. Alba.
Atty. Alba had a notarial commission to accept oaths and subscriptions for the
City of LapuLapu. At the time of the execution of the Will, Dolphy got confined
in Chong Hua Hospital. The Last Will and Testament, therefore, was notarized
in Cebu City. Is the Last Will and Testament valid?

SUGGESTED ANSWER:

No, the last will is not and testament is not valid.

Article 806 of the New Civil Code provides that every will must be
acknowledged before a notary public. Furthermore, it is fundamental rule that
the jurisdiction of the notary public is in any place within the territorial
jurisdiction of the commissioning court. (2004 Rules on Notarial Practice,
Section 11)

In the case at bar, the facts shows that Atty. Alba's jurisdiction is only within
Lapu Lapu City. He had no authority to acknowledge the will of the will of
Dolphy. Thus, there was as if no acknowledgment had ever taken place which
renders the will defective.

X died leaving his 3 siblings as his
donated a parcel of land. His other
sibling must collate this property
purpose of computing and collating
XXII.
only heirs. In favor of the 1st sibling, he
2 siblings, however, insisted that the 1st
back to the decedent’s estate, for the
legitimes.

(1) What is the concept of collation?

(2) Is the lot subject matter of the donation subject to collation in this case?

SUGGESTED ANSWERS:

1. The term collation has two distinct concepts: first, it is a mere mathematical
operation by the addition of the value of donations made by the testator to
the value of the hereditary estate; and second, it is the return to the hereditary
estate of property disposed of by lucrative title by the testator during his
lifetime. The purposes of collation are to secure equality among the

21
compulsory heirs in so far as is possible, and to determine the free portion,
after finding the legitime, so that inofficious donations may be reduced.

Collation takes place when there are compulsory heirs, one of its purposes
being to determine the legitime and the free portion. If there is no compulsory
heir, there is no legitime to be safeguarded.

2. No, the lot is not subject to collation.

Collation takes place when there are compulsory heirs, one of its purposes
being to determine the legitime and the free portion. If there is no compulsory
heir, there is no legitime to be safeguarded. The records do not show that the
decedent left any primary, secondary, or concurring compulsory heirs. He was
only survived by his siblings, who are his collateral relatives and, therefore,
are not entitled to any legitime, that part of the testators property which he
cannot dispose of because the law has reserved it for compulsory heirs.
In this case, the decedent not having left any compulsory heir who is entitled
to any legitime, he was at liberty to donate all his properties, even if nothing
was left for his siblings-collateral relatives to inherit. His donation, assuming
that it was valid, is deemed as donation made to a stranger, chargeable
against the free portion of the estate. There being no compulsory heir,
however, the donated property is not subject to collation.

Source: Amelia P. Arellano v. Francisco and Miguel Pascual, G.R. No. 189776,
December 15, 2010.

XXIII.
Roman’s father, Antonio, died of gunshot wounds. Upon investigation various
eyewitnesses pointed to Roman as the gunman. The public prosecutor,
therefore, found probable cause against him for murder. After filing Criminal
Information for murder, the court issued a warrant of arrest against Roman,
who, thereafter, went at large. Aside from Roman Antonio also left two other
children Rico and Rica as his other compulsory and legal heirs; and he left an
estate worth 15 Million Pesos. Rico and Rica, thereafter, filed a Petition against
Antonio for him to be disinherited. They did not present any Last Will and
Testament executed by Antonio; they proved with substantive evidence,
however, that Roman killed their father, Antonio. A lawyer filed an Opposition
against Antonio alleging that Rico and Rica presented no proper basis for
Roman to be disinherited. You are the Honorable Presiding Judge, how would
you rule?

22
SUGGESTED ANSWER:

If I were the judge, I will rule in favor of the lawyer who filed an opposition to
the petition filed by Rico and Rica.

Article 916 of the New Civil Code provides that the disinheritance can be
effected only through a will wherein the legal cause therefor shall be specified.
It is also settled in the case of Ching vs. Rodriguez (2011) that while the
respondents in their Complaint and Amended Complaint sought the
disinheritance of Ramon, no will or any instrument supposedly effecting the
disposition of Antonio's estate was ever mentioned.

In this case, Rica and Rico did not present any Last Will and Testament
executed by their father, Antonio. They only prove with substantial evidence
that Roman killed their father. Since there was no will wherein the legal cause
for the disinheritance was presented, the petition to disinherit Ramon should
be dismissed.

XXIV.

Baslia died leaving behind an estate consisting of a house and lot and as her
only compulsory heirs Max, Ernie, and Rex. Behind the back of Max, Ernie and
Rex then executed a Deed of Sale with Declaration of Heirship where they
extra-judicially partitioned the house and lot, awarded it to themselves, and
they sold it to Landlock Realty, Inc. 1 year after the sale they informed Max.
Max then went to your law office to seek an opinion on the following: (a) Did
Ernie and Rex execute a valid deed? and (2) In order to protect his rights what
should Max do?

A. The Deed of Sale with Declaration of Heirship is null and void insofar as it
prejudices Max’s interest and participation therein. A deed of extrajudicial
partition executed without including some of the heirs, who had no knowledge
of and consent to the same, is fraudulent and vicious. In addition, Article 1458
of the New Civil Code provides: "By the contract of sale one of the contracting
parties obligates himself of transfer the ownership of and to deliver a
determinate thing, and the other to pay therefor a price certain in money or
its equivalent." It is essential that the vendors be the owners of the property
sold otherwise they cannot dispose that which does not belong to them. As
the Romans put it: "Nemo dat quod non habet." No one can give more than
what he has. The sale of the realty to Landlock is null and void insofar
as it prejudiced Max’s interests and participation therein. At best, only
the ownership of the shares of Ernie and Rex in the disputed property
could have been transferred to Landlock.

23
B. Max may institute an action to declare the nullity of the extrajudicial
settlement of estate and sale of the subject property insofar as his shares are
concerned.

XXV.

X died leaving behind his spouse, by the name of Y, his 2 legitimate children,
by the names of A and B, and his 2 recognized illegitimate children by the
names of C and D. X left behind an estate worth 20 Million Pesos. To avoid a
scandal, Y, X’s widow, paid Zoraida, X’s mistress and the mother of C and D,
the sum of 2 Million Pesos in cash. In exchange, Zoraida executed a waiver
on behalf of C and D, wherein the latter renounced their inheritance to the
estate of their father X. Is this waiver valid?

SUGGESTED ANSWER:

Yes, X waiver is valid. Art. 1044 provides that, any person having the free
disposal of his property may accept or repudiate an inheritance.
Any inheritance left to minors or incapacitated persons may be accepted by
their parents or guardians. Parents or guardians may repudiate the inheritance
left to their wards only by judicial authorization.

In the case at bar, X has the capacity to receive and repudiate the inheritance
of C and D, they being minors. Thus X waiver is valid.

XXVI.

Ms. X submitted for probate the last will and testament of a person she claimed
to have cohabited with. The court granted probate and no party appealed.
After this order became final and executor, the testator’s children went to
court to ask the will be declared intrinsically void, for its contents. Is this
allowed?

SUGGESTED ANSWER:

Yes. The action of the testator’s children is valid.

As a general rule, courts in probate proceedings are limited to pass only upon
the extrinsic validity of the will sought to be probated. Thus, the court merely
inquires on its due execution, whether or not it complies with the formalities
prescribed by law, and the testamentary capacity of the testator. It does not
determine nor even by implication prejudge the validity or efficacy of the will's

24
provisions. The intrinsic validity is not considered since the consideration
thereof usually comes only after the will has been proved and allowed.
However, in exceptional instances, courts are not powerless to do what the
situation constrains them to do, and pass upon certain provisions of the will.
In the present case, the court’s grant of probate is based on the extrinsic
validity of the will. Hence, the children of the testator is allowed to ask the
Court that it was intrinsically void.

XXVII.

On March 30, 2000, Mariano died intestate and was survived by his wife,
Leonora, and children, Danilo and Carlito. One of the properties he left was a
piece of land in Alabang where he built his residential house.

After his burial, Leonora and Mariano’s children extrajudicially settled his
estate. Thereafter, Leonora and Danilo advised Carlito of their intention to
partition the property. Carlito opposed invoking Article 159 of the Family Code.
Carlito alleged that since his minor child Lucas still resides in the premises,
the family home continues until that minor beneficiary becomes of age. Is the
contention of Carlito tenable?

SUGGESTED ANSWER:

No, the contention of Carlito is not tenable. In the case of Patricio v. Dario,
with similar facts to the case at bar, the court ruled that to qualify as
beneficiary of the family home the person must be among those mentioned in
Article 154, he/she must be actually living in the family home and must be
dependent for legal support upon the head of the family. While Lucas, the son
of Carlito satisfies the first and second requisites, he cannot however, directly
claim legal support from his grandmother, Leonora because the person
primarily obliged to give support to Lucas is his father, Carlito. Thus, partition
may be successfully claimed by Leonora and Danilo.
ADDITIONAL CONCEPT: (by MTCD applying the Rules on Succession/in
relation to Succession)

There is no legal impediment to partition the subject property. The partition

of the subject property should be made in accordance with the rule embodied
in Art. 996 of the Civil Code. Under the law of intestate succession, if the
widow and legitimate children survive, the widow has the same share as that
of each of the children. However, since only one-half of the conjugal property
which is owned by the decedent is to be allocated to the legal and compulsory
heirs (the other half to be given exclusively to the surviving spouse as her

25
conjugal share of the property), the widow will have the same share as each
of her two surviving children. Hence, the respective shares of the subject
property, based on the law on intestate succession are: (1) Perla Generosa
Dario, 4/6; (2) Marcelino Marc G. Dario II, 1/6 and (3) Marcelino G. Dario III,
1/6.

Source: 2014 Bar Question (citing the case of Patricio v. Dario G.R. No.
170829 November 20, 2006)

XXVIII.
Papa Bear executed a will but did not institute one of his children, Baby Bear,
when the will was submitted to probate, an opposition was filed. Minnie, the
proponent contended that Baby Bear was not preterited because he received
a donation inter vivos from Papa Bear, but that was never proven.

Believing that the decedent died intestate, the heirs filed an intestate
proceeding, but during the pendency of the same, Goldy Luck, one of the
heirs, filed a petition for the probate of his will. She asked for the suspension
of the intestate proceeding to give way to the probate of the will. The two
cases were consolidated but the heirs moved to dismiss the probate
proceeding on the ground of preterition. Minnie agreed to hold evidentiary
hearing to resolve the issue of preterition, but the she did not appear. The
court suspended the intestate proceeding and set the probate proceeding.
Then, it ruled that while testacy is preferred over intestacy, courts will not
hesitate to set aside probate proceedings if it appears that the probate of the
will might become an idle ceremony because the will is intrinsically void. In
fact, during the evidentiary hearings, it was admitted that one of the heirs
was preterited, and reinstated the administrator. The CA affirmed the RTC
ruling and ruled that preterition of a compulsory heir in the direct line annuls
the institution of heirs and opens the entire inheritance into intestate
succession, thus, the continuation of the testate proceeding would be
superfluous and impractical because the inheritance will be adjudicated
intestate. Was there preterition in the instant case? What are the effects of
preterition?
SUGGESTED ANSWER:

Yes, there was no preterition in the instant case.

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Preterition is the omission in testator’s will of one, some or all of the
compulsory heirs in the direct line, whether living at the time of execution of
the will or born after the death of the testator. (Art. 854). Preterition requires
that the omission is total, meaning the heir did not also receive any legacies,
devises, or advances on his legitime. In other words, preterition is the
complete and total omission of a compulsory heir from the testator’s
inheritance without the heir’s express disinheritance.

Here, the Papa Bear’s will evidently omitted Baby Bear as an heir, legatee, or
devisee. As the decedent’s (illegitimate- in the case) son, Baby Bear is a
compulsory heir in the direct line. Unless Minnie could show otherwise, Baby
Bear’s omission from the will leads to the conclusion of his preterition. Minnie
failed to prove that Baby Bear received donations inter vivos and advances on
his legitime from the decedent.

EFFECT OF PRETERITION
Under the Civil Code, the preterition of a compulsory heir in the direct line
shall annul the institution of heirs, but the devises and legacies shall remain
valid insofar as the legitimes are not impaired. Consequently, if a will does not
institute any devisees or legatees, the preterition of a compulsory heir in the
direct line will result in total intestacy.
Source: G.R. No. 198994, February 3, 2016 IRIS MORALES vs. ANA MARIA
OLONDRIZ, et. al.
(N. B. During the proceedings in the RTC, Morales had the opportunity to
present evidence that Francisco received donations inter vivos and advances
on his legitime from the decedent. However, Morales did not appear during
the hearing dates, effectively waiving her right to present evidence on the
issue. We cannot fault the RTC for reaching the reasonable conclusion that
there was preterition. SC will not entertain the petitioner’s factual allegation
that Francisco was not preterited because this Court is not a trier of facts.)

XXIX.
GF (Grandfather) was married to GM (Grandmother), and their marriage
produced a son named H. In turn, H (husband) married to W (wife) but their
union had no offspring. During their marriage, however, H had an extramarital
affair with M (mistress), who gave birth to respondent A during the
subsistence of H’s marriage to W. A was later on married to E. Consequently,
GF died in 1939, while H died m 1954. Likewise, W died in 1960, and GM in
1981. W had three siblings and GM four siblings, their siblings (the petitioner
herein) alleged that A who is the illegitimate child is not entitled to the the
properties subject of the action owned by GF and the two lots had been the

27
paraphernal properties of GM on the ground of Iron Curtain Rule. (a) What is
Iron Curtain Rule? (b) Is A entitled to inherit on the properties owned by his
GF (grandfather) and GM (grandmother)?

SUGGESTED ANSWER:

a) Iron curtain rule only applies in intestate succession wherein there is a

barrier recognized by law between the legitimate relatives and the illegitimate
child so that one cannot inherit from the other and vice-versa.

Art. 992 of the Civil Code provides that an illegitimate child has no right to
inherit ab intestato from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the same manner from
the illegitimate child.

Rationale: Between the legitimate family and the illegitimate family

there is presumed to be an intervening antagonism and
incompatibility.

b) No, A is not entitled to inherit on the properties owned by his GF

(grandfather and GM (grandmother).

Under the Iron Doctrine Rule as provided for in Art. 992 of the Civil Code, an
illegitimate child has no right to inherit ab intestato from the legitimate
children and relatives of his father or mother; nor shall such children or
relatives inherit in the same manner from the illegitimate child.

In the case at bar, A is an illegitimate child of M and H, the latter not being
legally married to each other. H, however, was a legitimate child of GF and
GM whose property is the subject matter of the issue. A, being an illegitimate
descendant of GF and GM, is barred from inheriting from the latter. Thus, A is
not entitled to inherit from GF and GM.

XXX.

On January 3, 1979, Victor mortgaged a parcel of land as security for a loan

he obtained from the Rural Bank of Maigo, Lanao del Norte. Victor failed to
pay his loan. As a result, the mortgaged property was foreclosed and was
subsequently sold to the Bank as the sole bidder at a public auction held for
that purpose. On November 20, 1981, a Certificate of Sale was executed by
the sheriff in favor of the Bank. The property was not redeemed within the
period allowed by law. On January 25, 1984, the sheriff executed a Definite
Deed of Sale in the Bank’s favor. Thereafter, a new title was issued in the

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name of the Bank. Subsequently Victor died on July 6, 1984. On October 10,
1989, Joseph, Enzo and Calvin executed an Extrajudicial Settlement of Estate
adjudicating to each of them a specific one-third portion of the subject
property consisting of 10,246 square meters. The Extrajudicial Settlement
also contained provisions wherein the parties admitted knowledge of the fact
that their father mortgaged the subject property to the Bank and that they
intended to redeem the same at the soonest possible time. Is the questioned
property forms part of the estate of Victor?

SUGGESTED ANSWER:

No, the questioned property does not form part of the estate of Victor.

Under the law, the rights to a person's succession are transmitted from the
moment of his death. In addition, the inheritance of a person 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.

In the present case, since Victor lost ownership of the subject property during
his lifetime, it only follows that at the time of his death, the disputed parcel of
land no longer formed part of his estate to which his heirs may claim. Joseph,
Enzo, and Calvin never inherited the subject lot from their father.

The property was made to secure the loan that Victor obtained as a real estate
mortgage and defaulted in payments which led the foreclosure of the real
estate mortgage. Furthermore, the right of redemption was not exercised by
Victor when he was alive. Victor, completely lost the property. Thus it did not
form part his estate.

XXXI.

On February 19, 1994, Felisa Tamio de Buenaventura, mother of petitioner

Bella A. Guerrero and respondent Resurreccion A. Bihis, died at the
Metropolitan Hospital. On May 24, 1994, petitioner filed a petition for the
probate of the last will and testament of the decedent, alleging the following:
petitioner was named as executrix in the decedent's will and she was legally
qualified to act as such; the decedent was a citizen of the Philippines at the
time of her death; at the time of the execution of the will, the testatrix was
79 years old, of sound and disposing mind, not acting under duress, fraud or
undue influence and was capacitated to dispose of her estate by will.
Respondent opposed her elder sister's petition on the following grounds: the
will was not executed and attested as required by law; its attestation clause

29
and acknowledgment did not comply with the requirements of the law; and,
the signature of the testatrix was procured by fraud, and petitioner and her
children procured the will through undue and improper pressure and influence.
The petitioner was subsequently appointed as special administratrix of the
decedent's estate, which was opposed by the respondent but eventually
withdrew her opposition.

The trial court denied the probate of the will ruling that Article 806 of the Civil
Code was not complied with because the will was "acknowledged" by the
testatrix and the witnesses at the testatrix's, residence at No. 40 Kanlaon
Street, Quezon City before Atty. Macario O. Directo who was a commissioned
notary public for and in Caloocan City. Did the will "acknowledged" by the
testatrix and the instrumental witnesses before a notary public acting outside
the place of his commission satisfy the requirement under Article 806 of the
Civil Code?

SUGGESTED ANSWER:

No. In the case of Guerrero vs Bihis, with similar facts to the case at bar, the
Court ruled that one of the formalities required by law in connection with the
execution of a notarial will is that it must be acknowledged before a notary
public by the testator and the witnesses. This formal requirement is one of the
indispensable requisites for the validity of a will. As provided under Article 806
of the Civil Code, “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.”

Further, an acknowledgment is the act of one who has executed a deed in

going before some competent officer and declaring it to be his act or deed. In
the case of a notarial will, that competent officer is the notary public. The
acknowledgment of a notarial will coerces the testator and the instrumental
witnesses to declare before an officer of the law, the notary public, that they
executed and subscribed to the will as their own free act or deed.

Lastly, under the Notarial law, the jurisdiction of a notary public in a province
shall be co-extensive with the province. No notary shall possess authority to
do any notarial act beyond the limits of his jurisdiction. Any notarial acts
outside the place of his commission, he is bereft of power to perform any
notarial act; he is not a notary public. Any notarial act outside the limits of his
jurisdiction has no force and effect.

As in this case, since Atty. Directo was not a commissioned notary public for
and in Quezon City, he lacked the authority to take the acknowledgment of
the testratix and the instrumental witnesses. In the same vain, the testratix

30
and the instrumental witnesses could not have validly acknowledged the will
before him. Thus, Felisa Tamio de Buenaventura’s last will and testament was,
in effect, not acknowledged as required by law. In sum, notarial will that is
not acknowledged before a notary public by the testator and the instrumental
witnesses is void and cannot be accepted for probate.

Source: Guerrero vs Bihis, 521 SCRA 394 (2007)

XXXII.

Vicente Echavez was the absolute owner of several lots in Cebu City, which
includes Lot No. 1956-A and Lot No. 1959. In 1985, Vicente donated the
subject properties to Manuel Echavez through a Deed of Donation Mortis
Causa. Manuel accepted the donation. In 1986, Vicente executed a Contract
of Sell over the same lots in favor of Dozen Construction and Development
Corporation. Later on, two Deeds of Absolute Sale over the said lots were
subsequently executed covering the previous Contract to Sell. At the later part
of 1986, Vicente died. Emiliano Cabahig, Vicente’s nephew, filed a petition for
the settlement of the latter’s intestate estate. On the other hand, Manuel filed
a petition to approve Vicente’s donation mortis in his favor and an action to
annul the contracts of sale Vicente made in favour of Dozen Corporation.

The Regional Trial Court dismissed Manuel’s petition to approve the subject
donation mortis causa and action to annul the contracts made by Vicente. The
court reasoned out that the contract to sell executed by Vicente in favor of
Dozen Corp. effectively revoked the donation. When the case reached the
Court of Appeals, the appellate court affirmed the lower court’s decision. It
found out that the deed of donation mortis causa did not confirm with the
requirements set forth by law as said deed did not contain any attestation
clause and was therefore void. Was the appellate court correct?

NOTE: Manuel claims that the CA should have applied the rule on substantial
compliance in the construction of a will to Vicente’s donation mortis causa. He
insists that the strict construction of a will was not warranted in the absence
of any indication of bad faith, fraud, or substitution in the execution of the
Deed of Donation Mortis Causa. He argues that the CA ignored the
Acknowledgment portion of the deed of donation, which contains the "import
and purpose" of the attestation clause required in the execution of wills.

SUGGESTED ANSWER:

Yes, the Appellate Court was correct.

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The CA correctly declared that a donation mortis causa must comply
with the formalities prescribed by law for the validity of wills,
"otherwise, the donation is void and would produce no effect."
Articles 805 and 806 of the Civil Code should have been applied.

Even granting that the Acknowledgment embodies what the attestation clause
requires, we are not prepared to hold that an attestation clause and an
acknowledgment can be merged in one statement. That the requirements of
attestation and acknowledgment are embodied in two separate provisions of
the Civil Code (Articles 805 and 806, respectively) indicates that the law
contemplates two distinct acts that serve different purposes. An
acknowledgment is made by one executing a deed, declaring before a
competent officer or court that the deed or act is his own. On the other hand,
the attestation of a will refers to the act of the instrumental witnesses
themselves who certify to the execution of the instrument before them and to
the manner of its execution.

EXTRA NOTES:
As the CA correctly found, the purported attestation clause embodied in the
Acknowledgment portion does not contain the number of pages on which the
deed was written. The exception to this rule in Singson v. Florentino and
Taboada v. Hon. Rosal, cannot be applied to the present case, as the facts of
this case are not similar with those of Singson and Taboada. In those cases,
the Court found that although the attestation clause failed to state the number
of pages upon which the will was written, the number of pages was stated in
one portion of the will. This is not the factual situation in the present case.

XXXIII.

A, without any direct descendants or ascendants, died intestate. B is the

maternal aunt of A, while X is the daughter of A’s first cousin in the paternal
line. In an Intestate Proceedings of the Estate of A, X intervened, seeking to
inherit from A’s estate. The trial court awarded the entire estate to B, being
the nearest relative of A. X questioned the said decision and cited Article 1009
of the New Civil Code which provides that the collateral relatives shall succeed
without distinction of lines or preference among them by reason of relationship
by the whole blood. Can X inherit together with B?

SUGGESTED ANSWER:

No, X cannot inherit together with B.

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Art. 962 of the New Civil Code provides that in every inheritance, the relative
nearest in degree excludes the more distant ones, saving the right of
representation when it properly takes place. The rule on proximity is a concept
that favors the relatives nearest in degree to the decedent and excludes the
more distant ones except when and to the extent that the right of
representation can apply.

It is also settled in the case of Bagunu vs. Piedad (2000), the provisions of
Art. 1009 and Art. 1010 invoked by the daughter of the decedents first cousin
do not support her cause. The law means only that among the other collateral
relatives (the sixth in the line of succession), no preference or distinction shall
be observed "by reason of relationship by the whole blood." In fine, a maternal
aunt can inherit alongside a paternal uncle, and a first cousin of the full blood
can inherit equally with a first cousin of the half blood, but an uncle or an
aunt, being a third-degree relative, excludes the cousins of the decedent,
being in the fourth-degree of relationship; the latter, in turn, would have
priority in succession to a fifth-degree relative. In this case, B, being a relative
within the third civil degree of the decedent, excludes X, a relative of the fifth
degree, from succeeding ab intestato to the estate of the decedent. The rule
on proximity applies in this case.

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