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Wills Transcription 1 PDF
Wills Transcription 1 PDF
TABLE – OF – CONTENTS
BASIC PRINCIPLES ............................................................ 2 DISPOSITIONS with a TERM ...………………………….. 44
WILLS LEGITIMES ………………………………………………… 49
Wills in General ......................................................... 6 Reserva Troncal …………………………………….. 51
Testamentary Capacity and Intent .......................... 8 Collation …………………………………………….. 57
Form of Wills DISINHERITANCE ………………………………………… 63
Notarial Will ................................................. 10 LEGACIES and DEVISES …………………………………. 67
Holographic Will .......................................... 17 LEGAL or INTESTATE SUCCESSION ………….............. 72
Witnesses to Wills ...................................................... 22 Right of Representation ……………………………. 73
Codicil and Incorporation by Reference .................. 23 Intestate Shares ……………………………………... 75
Revocation .................................................................. 25 PROVISIONS COMMON to TESTATE
Republication and Revival ........................................ 28 and INTESTATE SUCCESSIONS ………………………... 78
Allowance and Disallowance ..................................... 29 Right of Accretion …………………………………... 78
INSTITUTION of HEIRS ...................................................... 32 Capacity to Succeed ………………………………… 82
SUBSTITUTION of HEIRS ................................................... 37 Acceptance and Repudiation ………………………. 86
CONDITIONAL DISPOSITIONS and PARTITION and DISTRIBUTION of ESTATE ………….. 87
If X made his will at the age of 17, and he died 10 years later
at the age of 27, his will is invalid.
In 804, the law is categorical when it said that the will must
be executed in a language or dialect known to the testator.
Therefore, if the will was written in English but the testator knew
only Filipino, but the lawyer who drafted the will fully explained,
translated and interpreted everything to the testator completely – that
remains an invalid will. The law is not satisfied with mere
translations or interpretations. It must be in a language or dialect
known to the testator. Reason? No matter how good the interpreter or
translator may be, certain nuances of language are always lost in the
process of translation or interpretation.
It is not necessary, however, that the will itself should
contain a statement to the effect that it is in a language or dialect
known to the testator.
The express direction, however, need not be done verbally. 805 provides, in paragraph 3, the matters which are required to be
If the lawyers asks the testator “Mr. Testator, do you want me to sign stated in the attestation clause. So what are these?
this will for you?” and the testator nodded – pwede na ‘yon. That is (1) the number of pages used upon which the will is
already an express direction. written;
(2) the fact that the testator signed the will and every page
It must be done in the presence of the testator. If the thereof or caused some other person to write his name under his
testator orders his lawyer “Atty, ipirma mo na pangalan ko dyan.” express direction in the presence of the instrumental witnesses;
And the three witnesses were there, but it was too crowded in that and;
small hospital room so the lawyer and the witnesses went to another (3) the fact that the instrumental witnesses signed the will
room to sign. That is not a valid will because the signing by the third and all the pages thereof in the presence of the testator and of one
person must be done in the presence of the testator. another.
Not just the testator, but the witnesses as well, must If the testator is blind, the will must be read to him twice –
acknowledge before the notary public. However, they are not the law even specifies who should do the reading – once, by one of
required to do so in each others’ presence, unlike in execution the witnesses, an again, by the notary public before whom the will is
where everyone must sign in the presence of each other. acknowledged.
The testator can acknowledge on Jan.1, one witness on Jan.2, If the will is read only once to the testator, it is not a valid
another on Jan.3 – still valid because presence is not required. will. It is not for the testator to waive a second reading – that is a
mandatory requirement which must be complied with, otherwise
If one of the three witnesses is also a notary public who the will is invalid. The purpose is to prevent the commission of
notarized the will, that is not a valid will. Because the notary public fraud.
cannot dichotomize himself and assume two different personalities,
one as a witness, and another as the notary public. If the testator is illiterate, walang specific na provision, but I
If there are 4 witnesses, and the will is acknowledged before submit: the same rule should be applied as with blind testators. Kase
one of them, then it can be valid because there are three other ang illiterate testator, para din bulag yan. Kahit na ipag wagwagan
witnesses to the execution of the will. mo sa harap ng mata nyan yung will, hindi nya mababasa. Those are
just meaningless signs and symbols as far as he is concerned. So, the
will must be read to him twice.
If the testator is deaf or a deaf-mute, 807 applies – he must Remember the case of Alvarado where the testator was
personally read the will, if able to do so; otherwise, he shall blind. The will was read only once. Not only that, it was not read by
designate two persons to read the will, and to communicate to him in the notary public nor by one of the witnesses. Ang nag basa was the
some practicable manner the contents thereof. lawyer who drafted it, and yet the will was allowed. Why? Because
It is the testator who will designate the two people who will while the lawyer was reading the will, they were all sitting around
read the will, and thereafter, communicate to him the contents the table – the notary public and the three witnesses – and they each
thereof. had a copy of the will, so they were following the lawyer’s reading
The law somehow assumes that some mode of word for word. After reading, the testator said “that is my will”, so it
communication is possible between the illiterate testator and the two was signed accordingly and acknowledged before the notary public.
If a Filipino is abroad and he wants to make a will, what If H wrote his will on a paper, and on the back page, his wife
formalities can he observe? He can observe the law of the place of W wrote her will, that is not a joint will. Those are two separate
execution – Lex Loci Celebracionis – applying 17 and 815 of the distinct wills. But if they wrote only one will and they both signed it,
NCC: the forms and solemnities of contracts, wills, and other public it is prohibited and void for Filipinos, even if you execute it at a
documents shall be governed by the law of the place where they are place where joint wills are allowed.
executed.
Assume that spouses H and W executed a joint will while in
If the Filipino is abroad, can he make his will in accordance Brazil where joint wills are valid for spouses. Valid? Nope, void.
with the formalities prescribed by the Civil Code? Yes. The Code Supposing, however, that W is a Brazilian model and H is a
does not categorically and expressly authorize Filipino citizens Filipino. While in Brazil, they made a joint will. Is it still void? Valid
abroad to make their wills abroad in accordance with the formalities in so far as W is concerned, but void as to H.
prescribed by Philippine laws, but it allows foreigners who are If both of them are Brazilians, we can recognize the joint
abroad to make their wills in accordance with the formalities will.
prescribed by Philippine laws. If foreigners are allowed to make their If both of them are Brazilians but they made the joint will
wills abroad as such, there is no reason why Filipino citizens abroad here in the Philippines, can we recognize it? Two views: (1) Void for
should not be allowed to do the same. being contrary to public policy; (2) Valid – NCC allows foreigners in
the Philippines to make a will in accordance with their national laws.
If an alien is here in the Philippines and he wants to make a
will, what formalities can he follow? Those prescribed by Philippine What about the intrinsic validity of wills? It is always the
laws or those of his own country. national laws of the decedent which must be followed.
Remember the four aspects of succession which are
An alien abroad, however, has four choices: (1) laws of his ALWAYS governed by the national law of the decedent:
nationality; (2) those of his domicile; (3) laws of the place of The first three in Art.16, the fourth in Art.1039: (1) order of
execution; or (4) those prescribed by Philippine laws. succession; (2) amount of successional rights; (3) intrinsic validity of
However, when it comes to Filipino citizens, regardless of testamentary provisions; and (4) capacity to succeed.
where they may be, they can never make a joint will. Basta pinoy ka, Regardless of what the testator may say in his will – if, for
kahit sang lupalop ka pa ng mundo mag punta. example, a Korean testator wants his estate to be distributed under
Philippine laws, it will still be Korean Law which will govern.
If the testator revokes a will with the present intention of Another point – sometimes revocation may be presumed
making a new one immediately and as a substitute, and he is unable depending on the circumstances.
For example: There is evidence to the effect that the will was
to make the new will or, able to do so, but the same fails to take
effect for any reason or cause, it is presumed, in the absence of in the possession of the testator. After the death of the testator, the
evidence to the contrary, that the testator would have preferred his will is found among his possessions in a tattered and torn condition.
old will rather than intestacy. The presumption is that the testator revoked his will.
In other words, when the testator revokes his will under this Or if, after his death, the will could not be found, and there
doctrine, he does so conditionally. Ano ang condition? That a new was evidence that he was the one in possession of it, it may be
one will be effective. Kaya kung hindi sya nakagawa ng bagong will, presumed that the testator revoked his will.
or if the new will fails to take effect, then it is presumed that he You also remember 833 – a revocation based on a false or illegal
would rather die with his old will than to die intestate. cause is not valid.
Best illustration is the case of Molo vs Molo, which is a very The important thing here is that: before you can invoke 833,
old case but up to now is still the best illustration of this doctrine. it is necessary that the cause for the revocation must be stated in
the will.
Here was a man who made his first will in 1918. In that will,
he gave practically his entire estate to his wife. In 1939, he made If the testator simply revokes a will, even assuming that the
another will where he expressly revoked his earlier will but still cause for the revocation is false or illegal, but did not state the cause
giving the bulk of his estate to his wife. After he died, the wife in the will itself, there will be no basis for any invocation of 833.
presented his 1939 will for probate. Unfortunately it was disallowed Example: The testator instituted his friend X as heir to the
bulk of his estate in his 1995 will. 10 years later, the testator heard
by the probate court for failing to comply with the formalities
prescribed by law. She then returned with the 1918 will, but could that X was already long dead. Thinking that this was true, he makes
not present the original copy. The best she could produce was a another will in 2005 and said “I hereby revoke my 1995 will.” After
duplicate thereof. The oppositors claims that the reason why she the death of the testator, X appears and learns of the revocation, and
could not present the original was because her husband already was told by the testator’s close friends that the only reason why the
The Court answered in Ventura vs. Ventura, where the If the omitted child is an illegitimate child, that is also
decision was divided 3-2. The majority said: Intentional omission is preterition. Because even illegitimate children are compulsory heirs
still preterition. What happened in the case was – Gregorio Ventura in the direct line.
had 2 legitimate children by a previous marriage. Later on, Gregorio If there are no children, especially legitimate ones, but the
and his 2 children from the first marriage had a grave dispute, parents are alive, the parents, in that case, are compulsory heirs.
reaching a point where Gregorio even denied paternity to them, but
And if they are omitted, that is preterition.
the two was still able to establish their legitimate filiation. In the
meantime, Gregorio made a will which he presented for probate
during his lifetime. In that will, he did not give anything to his two
children. Therefore, omission of the two was clearly intentional. The
question was, is that preterition? The SC anwered in the affirmative,
even when it was done intentionally. The dissenters in the decision
says that is no longer preterition, but rather imperfect disinheritance.
As part of the right of disposition of the testator, the law If there are several heirs, and they are, at the same time,
allows the testator to designate substitutes. designated as reciprocally the substitutes of each other, and a
The testator may institute someone as an heir, and at the vacancy occurs, 863 provides – the substitutes shall, at the same
share as the substitution, as in the institution. Ano ibig sabihin non?
same time, is allowed to designate somebody as substitute. Para
kung may mangyaring aberya sa instituted heir, or legatee or devisee They will have the same proportional shares.
concerned, somebody will be able to take his place. Let’s assume that X has no compulsory heirs and says “I
There are various types of substitution: institute as my heirs A, B and C, but A will get ½, B and C will get
(1) Simple – one on one. Ex.: A is instituted as heir, B is ¼ each; and at the same time, I designate them reciprocally as the
designated as substitute. substitutes of each other.” Assuming that the estate is P600,000, A
(2) Brief – there are 2 or more substitutes for a single heir. gets P300,000, B and C gets P150,00 each. Assume further that B
predeceases, so substitution will now take place. The law provides
Ex.: testator institutes A as heir, and designates B and C as his
substitutes. that they will have the same share in the substitution as in the
(3) Compendious – one substitute for 2 or more heirs. institution – that simply means they will have the same proportional
(4) Reciprocal – For example: A, B and C are instituted as shares.
The proportion between A and C is “2 is to 1” (2:1).
heirs, and at the same time, shall reciprocally be the substitutes of
each other. If anyone of them predeceases, repudiates, or becomes Meaning, 2/3 of P150,000 will go to A, the 1/3 to C – P100,000 to A
incapacitated, the other two will be the substitutes. and P50,000 to C.
(5) Fideicommissary – to be discussed later on.
If the testator does not specify the causes for the substitution,
it is understood that substitution will take place in case of RIP
(repudiation, incapacity, predecease).
The testator may specify, and in such case, substitution will
only take place upon the occurrence of the particular cause specified
If, during the execution of the will, the testator did not know
that the casual or mixed condition he imposed has already been
fulfilled, what is the rule? Does it have to be fulfilled again? NO. It
is already deemed complied with.
If instead, at the time the testator made his will, he knew that
the casual or mixed condition he was imposing has already been
fulfilled but he imposed it anyway, it can only mean that he wants
Assume X sells that land, after it was donated to him by his That is the reason why according to some, one of the
grandfather, to Carlo for P5M, and just 3 days after the sale X dies. requisites of a reserva troncal is that the descendant must leave no
Having died intestate, his entire estate including the P5M was legitimate issues – because there is no way that an ascendant can
inherited by his mother G. Will there be a reserva over the P5M? acquire property from him by operation of law if he has legitimate
NO. We do not allow substitution in reserva troncal. In other words, issue of his own.
unless it is the very same property which previously came from an
ascendant, brother or sister by gratuitous title, which is subsequently It is only when G acquires the property (the parcel of land)
inherited by operation of law by another ascendant, there is no from X by operation of law that the reserva starts automatically.
reserva troncal. But there may be a reserva regardless of what kind While the property is in the possession of the reservista and
of property it may be – even on money, as long as it is the very same is already reserved for A and E, what is the nature of the right of
property which previously came by gratuitous title from an such reservista? Is he just like the fiduciary heir in a
ascendant, brother or sister and which had subsequently been fideicommissary substitution, having the rights of a usufractuary?
acquired by another ascendant through operation of law. NO. The reservista is actually the owner of the property under
reserva troncal. But that ownership is subject to the threat of
Therefore, if X is still alive and still has that land, it is within extinction subject to a resolutory condition. What is the resolutory
his power to determine whether or not there will be a reserva troncal condition? If there are, at the moment of death of the reservista,
later on. As said by some civilists: the descendant is the arbiter of surviving reservatarios.
the reserva. He has the power of life and death over the reserva. If
he does not want the reserva to arise later on, he can simply dispose If, at the time of death of G, there are surviving
the property – that will effectively prevent the reserva because it will reservatarios, then the rights of G are extinguished and transferred to
no longer be the very same property. If he gets married and he has a the reservatarios.
legitimate issue, for example he had a child; reserva troncal is no
Can G, the reservista, sell the reserved property during his
longer possible. Why? Because if the descendant has a legitimate lifetime? YES. But that sale is subject to the same resolutory
issue, there is no way that his ascendant can acquire property from condition.
him by operation of law.
Lahat ng nakain mo, kahit malakas ka pa kumain simula Donations given to a daugther-in-law or a son-in-law are
nung maliit ka, support ‘yan – not covered by collation, you don’t charged against the free portion. This is because an in-law,
have to worry. regardless of the fact that you are the favorite in-law, is not
considered an heir and not entitled to any legitime.
Customary gifts like yearly birthday gifts and pamasko –
those will not be subject to collation. Donations given to grandchildren, you remember the
special rule – Assume that X has two children A and B, then B had a
Pag dating sa Education, we distinguish between tertiary or son C. X donated a parcel of land to his son B, and also donated to
college and the education before that. 1067 covers only up to high- his grandson C a car. X dies. The value of the land will have to be
school level, this will completely not be subject to collation. Pero collated together with the value of the car. When the time to charge
yung na gastos sa’yo pagdating mo ng college, that is covered not by or impute the donations has come, the value of the land will be
1067 but 1068 – expenses incurred by the parents in giving their imputed or charged against the legitime of B. The value of the car
children professional, vocational or other career. So even then, will be charged against the free portion. This is because C will not
you don’t have to worry. In other words, the value or the amount inherit – buhay pa yung tatay nya.
spent by your parents in sending you to college will be added to the Let us assume, however, that B sold the land to Z. After
estate, but when it comes to charging or imputation, that is not selling the land, he spent the entire proceeds thereof in just one
considered as an advance on your legitime. That is chargeable whole night at the casino – ubos yung P10M, and then he dies. C will
against the free portion. Kasama dyan yung incidental expenses, not now be inheriting from X. Under this situation, even if C did not
just the tuition. Like yung mga nagastos sa pag bili ng mga libro for benefit from that land, he is obliged to bring into collation not only
example, is generally not chargeable to the legitime but rather the value of the car, but also the value of the land – that is the rule
against the free portion, UNLESS otherwise provided by the parent, for grandchildren. In this regard, you have the provisions of 1064.
in which case, whatever the parent would have spent if the child
simply stayed at home will be taken into account; or UNLESS there Remember also the special rule for wedding gifts consisting
is a clear impairment of the legitime of other compulsory heirs. of jewelry, clothing and outfits under 1070 – to the extent that they
do not exceed 10% of the free portion, these wedding gifts consisting
of jewelry, clothing and outfit will be charged against the free
May mga magulang na mahilig magpa kandidato ng portion. Any excess over the 10% limitation will be charged against
kanilang mga anak kahit wala naman kapana-panalo. Gagastahan the legitime of the child concerned.
Mere conviction of an offense which carries with it civil If, however, after your father tried to kill your mother, he
interdiction – the offense need not be committed against the testator was prosecuted and convicted by final judgement, I submit that
or any close family member, it may have been done against a total despite the reconciliation between them, you can still disinherit your
stranger. What is the reason for this? Because civil interdiction is father. Not on the basis of (8) of 920, but on (2) – on the basis that
merely an accessory penalty attached only to afflictive penalties. the parent or ascendant had been convicted of an attempt against the
When you are convicted of an offense which carries with it civil life of a testator, his spouse, ascendants or descendants UNLESS,
interdiction, that means you must have done something terribly there has been a reconciliation between your father and yourself.
wrong, and having committed a very serious offense, there is deemed Because then, the general rules on reconciliation under 922 would
to be a very wide moral chasm which separates you from your apply – reconciliation will deprive the offended party of the right to
parent. disinherit, and will also render ineffective any disinheritance
previously made. When is there reconciliation? Reconciliation is
much more than mere pardon. A lot of people on their death beds
When a child or descendant, by fraud, violence, intimidation would generally extend an absolute general pardon to all the people
or undue influence, causes the testator to make a will or to change who may have offended them which is quite natural for persons who
one already made. are at the brink of death – that is not the reconciliation contemplated
of. Reconciliation means that the pardon is extended to the offender
and the offender accepts the pardon, and there is a restoration of the
former relations between the parties – that is reconciliation.
The first one in the grounds for parents and ascendants is –
when the parents have abandoned their children or induced their
daughters to lead a corrupt or immoral life or had attempted against
their virtue Remember one of the grounds of disinheriting a spouse is if
With respect to abandonment, it applies to both male and a spouse has given cause for legal separation – this used to be under
female members of the family. The second part, inducement to lead the Civil Code, but now under 55 of the Family Code, sangkatutak
a corrupt or immoral life or attempt against their virtue, applies only ang grounds for legal separation. Even mere alcoholism, repeated
to female members of the family – daughters and granddaughters. physical violence or even grossly abusive conduct are grounds for
disinheritance. Mahilig ka makipag inuman sa kabarkada mo sa
Mere attempt of one parent against the life of the other – bahay ninyo, at pag lasing ka na tatawagin mo asawa mo “Hoy
gives the children and descendants the right to disinherit the parent. tabachoy, lagyan mo nga ng pulutan dito” pag paulit-ulit ‘yan
If your father tried to kill your mother, you can disinherit your father, grossly abusive conduct na ‘yan. You can be disinherited for giving
The legitimate children and other descendants excludes the In connection with proximity, we also have to take into
legitimate parents and other ascendants, but they do not exclude the account the rules of Representation. Why? Because by the right of
illegitimate children and the surviving spouse. representation, a further relative becomes just as near.
Under the exclusion theory, the P30,000 shall go to A and B Without the legacy of P10,000, the distribution would have
to the exclusion of C and D. Why? Because they are first in the order been: ½ or P60,000 to A and B; ¼ or P30,000 to C and D; and
of intestate succession. Thus, A and B gets an additional P15,000 another ¼ will go to W.
each. The problem with the existence of the legacy is the question
of where to get this P10,000? From whose share? Remember the rule
Under the concurrence theory, the P30,000 will be spread in a situation such as this – you satisfy the legacy by deducting it
out among all of them following the proportion of 2:2:1:1 to A, B, C from the intestate share of the legal heir whose intestate share is
and D, respectively. Thus, 1/6 or P5,000 each would go to C and D, bigger than his legitime.
and 2/6 or P10,000 each would go to A and B. Therefore, A and B
will end up with P40,000 each; C and D will end up with P20,000 One by one, we first go to the legitimate parents. The
each. Note that the ratio of 2:1 is maintained – that is the legitime of A and B is ½ or P60,000, while their intestate share is
concurrence theory, which, I submit, is the better theory because it also ½, thus, hindi natin pwede bawasan because A and B are
takes into account the ratio which is established by law between entitled to nothing less than that ½. We cannot just deduct the
legitimates and illegitimes. P10,000 from P120,000 then simply distribute the remainder
according to ½, ¼ and ¼ – mali ‘yon. Anything less than P60,000
would amount to an impairment of legitime.
When it comes to Adopted children, just treat the adopted Let’s go now to the illegitimate children. Their legitime is ¼
child just like a legitimate child. or P30,000, while their intestate share is also ¼, thus, hindi ulit
pwede bawasan.
Another point I want to stress is the problem of Partial To the surviving spouse this time. W’s legitime is only 1/8
Intestacy or Mixed Succession. or P15,000, while her intestate share, however, is ¼ or P30,000. If
we deduct the P10,000 legacy from her intestate share, she will still
Let’s assume that X dies with a will that has only one receive P20,000 which is still more than her legitime. Thus, this is
provision wherein he said “I give P10,000 to my friend Kiko.” He how we satisfy the legacy, because her legitime would not be
dies with an estate of P120,000. He is survived by his legitimate impaired even after the charge.
parents A and B, his wife W, and his two illegitimate children C and
D. This is obviously a case of mixed succession, because, while he
had a will, it did not dispose of the entire estate. Thus, the rule is –
If A should predecease me, his 1/3 share will go by Can there be accretion if what is given is money or other
accretion to his co-devisees B and C. fungible things? YES. As long as there has been no ear-marking –
this means physical segregation.
Next is the share of D in the free portion as a voluntary heir. Therefore, A and B will end up with P45,000 each, while E
Again, is there a substitute? Wala, so accretion tayo, si A and B and F will each get P15,000.
nanaman ang co-heirs. The P15,000 share of D as a voluntary heir It is always much simpler if the vacancy occurs in intestate
will be shared by A and B at P7,500 each by way of accretion. succession because, for one thing, you don’t distinguish between
Finally, the P15,000 legitime of D. An heir who repudiates legitime and free portion but rather to the entire estate.
cannot be represented. Wala din siyang co-heirs, he is the only one
called to that legitime. You have no choice but to give it to the legal
or intestate heirs of X. Who are these? A and B, as well as E and F
by right of representation. Thus, the P15,000 will be divided into
three parts – 1/3 or P5,000 each for A and B, then E and F will
divide the share which would have pertained to C if he did not
With respect to Non-Natural persons or entities and The basis of this prohibition is the possibility of undue
associations, it is possible for them to inherit even if they do not influence.
actually have a separate juridical personality. For example,
associations for religious, scientific, cultural, educational or If the testator confessed to five different priests during his
charitable purposes under 1026 can inherit. There may be last illness, all five becomes incapacitated. In other words, the
dispositions made in general terms for prayers and pious works for confession need not be the last confession. As long as it was made
the benefit of the soul – the “soul” does not have juridical during the last illness, the priest who heard it will be incapacitated.
personality, but it is allowed to actually benefit under a will. There
However, if the priest did not hear the confession, as when
may be provisions in favor of “the poor” in a locality. they would instead pray the rosary or read the bible together during
Recall the provisions of 43 of the Civil Code – if there is a visits, the priest will not be incapacitated. He must have actually
doubt, as between two or more persons who are called to succeed heard the confessions.
each other, as to who died first, whoever alleges the death of one For ministers of other religious denominations, it is
ahead of the other must prove the same. In the absence of proof, it is sufficient that they had extended a spiritual aid to him during the
presumed that they died at the same time and there shall be no same period.
transmission of rights from one to the other. However, this provision
does not preclude the application of the rules of representation.
Thus, 1027 does not affect the legitime. If a compulsory If a doctor was simply consulted by the attending physician,
heir is incapacitated under this provision, he can still get his legitime. but not actually treated the testator, he is not incapacitated.
Why? Because there is no possibility of undue influence insofar as
the legitime is concerned. Why not? The legitime is something which There is an interesting question – Suppose that the doctor
is totally beyond the control of the testator, whether he likes it or not who took care of the testator during the last illness was the latter’s
it will go the compulsory heirs. own son, does the incapacity apply to that son? There are two
different views. According to the first view, if the doctor or nurse
1027 does not also apply to intestate succession, but only who took care of the testator during his last illness is a close relative
in testamentary succession. This is because the law repeatedly uses like a son, the incapacity should not apply. Why? The true Filipino’s
the word “testator” and again, there is no possibility of undue first impulse is to rush to the side of a dying parent. If you happen to
influence when it comes to intestate succession. It is the law itself be a doctor or a nurse and you do not take care of your own dying
which mandates how the estate will be distributed depending upon parent, the entire barangay will ostracize you.
who the survivors are.
The other view says that the son, who is also the doctor who
(3) Guardians with respect to their wards, if there are took care of this father during the last illness, is incapacitated. Why?
dispositions made by the ward before the final accounts of the Because there does not seem to be an intention on the part of the
guardianship have been approved – remember that in this provision, legislature to exempt close relatives. In comparison, (3) expressly
there is a built-in exception: any provision made by the ward in favor provided for an exception – that it does not apply to guardians who
of the guardian, when the latter is his ascendant, descendant, are closely related to the ward. If it was intended by the legislature to
brother, sister or spouse, shall be valid. recognize a similar exception in (5), they would have expressly done
so.
In (5) any person guilty of adultery or concubinage with the Suppose that after the S’ conviction by final judgement, X
spouse of the testator – note that the spouse is not incapacitated to disinherited him. But before the death of X, they was reconciliation
succeed for unworthiness. Frankly, I do not understand why. Assume between them. This time, he can. Why? When the father disinherited
that X has only one living relative, his brother B. X is married to a his son, the father invoked and submitted himself to the rules of
very beautiful lady. He comes home unexpectedly early one disinheritance. One of the principles of disinheritance in 922 is that a
afternoon and catches, in their own conjugal bed, his wife and his reconciliation between the offender and the offended party deprives
only brother having the time of their lives. X files a case against the offended party of the right to disinherit, and renders ineffectual
them and the two are convicted of adultery. Later on, X dies any disinheritance previously made. Thus, in this case, the rule
intestate, leaving millions in money and property. To who will his should apply. But if X did not disinherit, there is no basis for the
estate go? His unfaithful wife will inherit everything, to the application of the rule of disinheritance.
exclusion of his brother. If his brother was not rendered unworthy, he
would have gotten half.
According to some civilists, the reason is that the law As of what moment should the capacity of the heir be
presumes in favor of the solidarity of marriage, and would rather determined? We again use 777 as basis, thus, the heir must be
leave it to the testator to decide whether he will disinherit his spouse capacitated as of the moment of death of the decedent because it is at
– anong solidarity, kinaliwa na nga eh. What’s the moral of the that moment that there is transmission of successional rights.
story? First thing is to make a will disinheriting your spouse.
If, however, the institution, legacy or devise is subject to a
suspensive condition, there will be two moments to consider:
moment of death; and moment of the fulfillment of the condition. In
Supposing that S is the son of X. S was convicted of an that case, capacity should be possessed at both moments. Otherwise,
attempt against the life of his own father X – that is a ground for the heir, legatee or devisee does not inherit.
disinheritance and a cause for unworthiness. X did not disinherit his
son. However, before the death of X, there was a tearful
reconciliation between them. The question is: can S inherit? NO. He
is unworthy. To erase unworthiness, you need an express or implied
pardon. An express pardon must be in writing, while an implied
The best example would be the case of Mang Oy vs C.A., a Effects of Partition
ponentia of Justice Isagani Cruz – there was an old igorot man who Upon partition, there is mutual reciprocal warranty among
realized that death was upon him, thus, he decided to make a will. In the heirs with respect to title and quality of the portions allocated to
that will, he distributed specific properties to specific heirs. He then them under the partition.
called his children to read his will and the latter all agreed to comply
with such will. They even went to a notary public and executed a
Remember the three situations where there is no warranty If there are two or more heirs, then a third person gets
among the heirs, which you’ll find in 1096: included in the partition, then the partition is void only with respect
(1) if it was the testator himself who made the partition, to the share given to the third person.
UNLESS there is an impairment of the legitimes of compulsory
heirs, or UNLESS it is clear that his intention is otherwise; Worst case scenario – there are several heirs, one of them is
(2) if there is an express agreement among the heirs that omitted, and his share is instead given to a third person. In this case,
there will be no warranty among them; it does not necessarily follow that the partition will be rescinded in
(3) if the eviction is due to causes which arose after the the absence of bad faith or fraud. The portion given to the third
partition. person should instead be given to the omitted heir. Thus, there will
be a corresponding obligation on the part of the heirs who
participated in the partition to proportionately contribute to the share
of the omitted heir.
A partition is a contract, and just like any other, it is subject
to rescission on the ground of lesion or damage. What is the amount In his connection, remember the case of Viadonon vs CA – a
of the lesion or damage? The same as in ordinary actions for father and three of his children entered into a partition, excluding a
rescission of contracts. If an heir receives property whose value is fourth child who was mentally retarded. Later on, the Court said: it
less by at least ¼ than that which he is legally entitled to, then he does not mean that the entire partition is void under 1104, unless it is
may ask for a rescission. The prescriptive period is 4 years from the clear that there is bad faith or fraud. But the heirs who participated in
time the partition is made, which is the same with that of ordinary that partition is obligated to contribute proportionately to the share of
contracts. the omitted heir.