Wills and Succession

Notes from last semester

Conditions for the transmission of successional rights:

1. That indeed, there has been death

2. That the rights or properties are indeed transmissible or descendible

3. That the transferee is still alive (no predecease), willing (no repudiation, and is capacitated to inherit

When may a person’s estate be opened for succession in cases involving presumptive death?

It depends on whether there is ordinary or extraordinary absence.

In case or ordinary absence, the estate may be opened for succession at the end of ten years from the time of absence. However, in case he disappeared at the age of seventy-five (75), he shall be presumed dead for the purpose of opening his succession at the end of five years from the time of disappearance

In case of extraordinary or qualified absence, a person shall be presumed dead for all purposes including the division of the estate among the heirs after four years.

What is the effect of the absentee’s return or reappearance?

If the absentee appears, or his existence is proved, he shall recover his property in the condition it may be found, and the price of any property which may have been alienated or the property acquired therewith; but he cannot claim either fruits or rent.

Essential elements and characteristics of a will (S³E²AT²DUF)

1. Statutory

2. Solemn or formal

3. Strictly a personal act

4. Effective mortis causa

5. Essentially revocable

6. An individual act

7. There must be animus testandi

8. Testator must be capacitated to make a will

9. Disposes of the testator’s estate

10. Unilateral

11. Free from vitiated consent

Requirements of a NOTARIAL or ordinary will (NAAWrLaSSS)

1. All pages shall be Numbered correlatively in letters placed on the upper part of each page

2. There must be an Attestation clause

3. Acknowledgment before a notary public

4. The will must be in Writing

5. It must be executed in a Language or dialect known to the testator

6. It must be Subscribed at the end of every page thereof by the testator himself or by the testator’s name written by another person in the presence and by the express direction of the testator

7. It must be attested and Subscribed by three or more credible witnesses in the presence of the testator and of one another

8. The testator or the person requested by him to write his name, and the instrumental witnesses of the will shall Sign each and every page thereof, except the last, on the left margin

What shall the Attestation Clause state?

1. The number of 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 instrumental witnesses

3. That the instrumental witnesses witnessed and signed the will in the presence of the testator and of one another

Rules when the testator is deaf or deaf-mute:

1. If he cannot read the will, two persons must communicate it to him

2. The two persons designated need not be the attesting witnesses

Rule if the testator is blind

1. The will shall be read to the testator twice: once by one of the subscribing witnesses and once by the notary public.

Formalities required for a Holographic Will (WrLaSAAD)

1. The will must be entirely Written by the hand of the testator himself

2. The Language must be known to the testator

3. The will must be Signed by the testator himself

4. There must be Animus Testandi

5. It must executed at the time that holographic will are Allowed

6. The will must be Dated

Requisites for the validity of documents incorporated by reference (SIDE)

1. It must be Signed by the testator

2. It must be Identified by clear and satisfactory proof as the document or paper referred to therein

3. The will must clearly Describe and identify the same, stating among other things the number of pages thereof

4. The document or paper referred to in the will must be in Existence at the time of the execution of the will

Determination of the Formalities required in making a will

1. Filipino Abroad (815)

a. The place of execution

b. Philippine laws

2. Foreigner in a foreign country (816)

a. The place of nationality (lex nationalii)

b. The place of domicile or residence

c. Philippine law

d. The place of execution

3. Foreigner in the Philippines (817)

a. The law of the place of his nationality (lex nationalii)

b. The law of the Philippines

*Joint wills executed by foreigners abroad and valid in accordance with Art. 816 is considered valid in the Philippines.

What is the Principle of Instanter?

The revocatory clause of a second will takes effect immediately or at the instant the revoking will is made. (Art 837)

Grounds for disallowance of a will (FIFFIM)

1. If the Formalities required have not been complied with

2. If the testator was Insane at the time of its execution, or otherwise incapable of making a will at the time of execution

3. If it was executed through Force or under duress, or the influence of fear or threat (connote the idea of coercion, mental or physical)

4. It the signature of the testator is procured by Fraud (the use of insidious machinations to convince a person to do what he would not ordinarily do)

5. If it was procured by undue and improper pressure and Influence, on the part of the beneficiary or some other person (coercion by virtue of which the judgment of the testator is displaced, and he is induced to do that which he otherwise would not have done)

6. If the testator acted by Mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto

Requisites for Preterition

1. There is a total omission in the inheritance

2. The omission must be of a compulsory heir

3. The compulsory heir omitted must be in the direct line

Wills and Succession

Article 816 EXAMPLES

Situation 1: A Japanese resides in Indonesia. On his way to the Philippines, he makes a stop-over in Malaysia, where he made his will. What law should be followed in making the will?
Answer: In making the will, he may follow the laws of the following countries:

1. Indonesia (the place of residence)
2. Japan (his country)
3. Philippines (as provided by Civil Code)
4. Malaysia (under the doctrine of lex loci celebrationis)

Situation 2: The Japanese wants to revoke the will. What law should be followed in revoking the will?
Answer: In revoking the will, he may follow the laws of the following countries:

1. Malaysia (where the will was made)
2. Indonesia (where he resides)
3. Philippines (if the revocation is made in the Philippines)

NOTE: The Civil Code does not mention that the revocation may be done according to the law of the testator's country (in this case, Japan).

Probate - the act of proving before a competent court, the due execution of a will by a person possessed of testamentary capacity, as well as approval thereof by said court.

2 Kinds of Probate:

1. Ante-Mortem (initiated by the testator himself, during his lifetime)
   
2. Post-Mortem (after the testator's death)

Interested party - one who would be benefited by the estate
Distribution - the division, by order of the court having authority, among those entitled thereto, of the estate of a person, after the payment of debts and charges

When may a final judgment on a probate be set aside?

• By Petition for Relief brought within the legal period (on the ground of FAME). Legal period: (a) 60 days from receipt or notice of final order; or (b) 6 months from entry of order
• Should the period lapse, the judgment now really becomes FINALLY FINAL

Generally, a probate court has no jurisdiction to decide questions of ownership, except:

1. When the parties voluntarily submit this matter to the court
2. When provisionally, the ownership is passed upon to determine whether or not the property involved is part of the estate

Grounds for disallowance (ARt 839):

1. defective formalities
2. insanity at the time of execution
3. force, duress, fear or threat
4. undue and improper pressure and influence
5. fraud and forgery
6. mistake or lack of testamentary intent in so far as the document is concerned

Distinctions between revocation and disallowance:

1. Revocation is a voluntary act made by the testator while disallowance is given by a judicial order.
2. Revocation may be made by the testator with or without any cause while disallowance must always be for a legal cause.
3. Revocation may be partial or total while disallowance is always total except in cases of fraud and undue influence.

Institution of heir - an act whereby the testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations

Requisites for a valid institution:

1. the will must be extrinsically valid (valid as to form)
   
2. the institution must be intrinsically valid
3. the institution must be effective

"unknown person" - one who is known by the testator but cannot be identified from the will (Dean made us distinguish between an unknown person and an unidentified person... Nosebleed!)

Preterition - (or pretermission) is the omission, whether intentional or not, of a compulsory heir in the inheritance of a person. Requisites:

1. there is a TOTAL omission in the inheritance
2. the one omitted must be a compulsory heir
3. the compulsory heir omitted must be in the direct line

Distinguish Art. 848 from Art 1006:

1. Article 848 refers to testamentary succession while Art. 1006 refers to interstate succession.
2. In Art. 848, brothers and sisters of full or half blood shall receive equally, when the inheritance instituted does not specify the shares to be given.
3. In Art. 1006, brothers and sisters of full-blood will receive double the share of half-blood. (Remember, 1006 applies to intestate succession).

Wills and Succession

Notes on Wills and Succession

SUCCESSION – a mode of acquisition by virtue of which the property, rights, and obligations up 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. 774)

What is succession? It is a mode of acquisition

What may be acquired?

1. Property
2. Rights
3. Obligations up to the extent of the value of inheritance (meaning, obligation transmitted may not exceed the value of the inheritance received)

How are the properties, rights and obligations acquired? Through death, either by will (testamentary succession), or by operation of law (intestate or legal succession).

Kinds of Succession:

1. Testamentary Succession – when the decedent left a will
2. Intestate or Legal – when the decedent has left no will and succession takes place by operation of law
3. Mixed Succession – when succession is partly by will and partly by operation of law

4. Contractual Succession – a contract executed by future spouses to give to each other in their marriage settlement as much of their future property, in the event of death, as they may validly dispose of in a will

Decedent – the person whose estate is transmitted through his death

Testator – the decedent who left a will

Intestate – the decedent who left no will

Heir – a person called to the succession either by the provision of a will or by operation of law

Compulsory heir – those to whom legitimes are reserved

Voluntary heir – one who is called to succeed the excess of the legitime

Legatee – on who succeeds a particular personal property (legacy)

Devisee – on who succeeds a particular real property (devise)

WILL – an act whereby a person is permitted, with the legal formalities prescribed by law, to control to a certain degree the disposition of his estate, to take effect after his death. (Art. 783)

Essential elements and characteristics of a will:

1. The making of a will is statutory
2. It is a unilateral act
3. It is a solemn or formal act
4. There must be animus testandi (intent to make a will)
5. The testator must be capacitated to make a will
6. A strictly personal act
7. Effective mortis cause
8. Essentially revocable or ambulatory (capable of being revoked anytime)
9. Free from vitiated consent
10. Individual
11. It disposes of the testator’s estate

Kinds of Will
1. Notarial Will – one done with the intervention of a Notary Public
2. Holographic Will – a will handwritten by the testator, dated and signed by him