Memory Aid in Civil Law

San Beda College of Law 1

Memory Aid in Civil Law

SUCCESSION

Civil Law Committee

Chairperson:Romuald Padilla Asst.Chairperson: Vida Bocar, Joyce Vidad EDP: Alnaiza Hassiman, Dorothy Gayon

 Subject Heads:Christopher Rey Marasigan (Persons and Family Relations), Alejandro Casabar(Property), Ma. Rhodora

Ferrer(Wills and Succession), Ian Dominic Pua(Obligations and Contracts), Sha Elijah Dumama(Sales and Lease), John Stephen

Quiambao(PAT), Christopher Cabigao(Credit Transactions), Ligaya Alipao(Torts and Damages), Anthony Purganan(LTD),

Ma. Ricasion Tugadi (Conflicts of Law)

San Beda College of Law 1

Memory Aid in Civil Law

SUCCESSION

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. 774)

Kinds:

1. Testamentary or Testacy (by will);
2. Legal or intestacy (by operation of law based on the decedent’s presumed will);
3. Mixed (Partly Testamentary and Legal); and
4. Partition inter vivos (to a certain degree).

Elements:

1. DECEDENT (subjective element)
2. SUCCESSORS (subjective element)

1. Heirs - those who are called to the whole or to an aliquot portion of the inheritance either by will or by operation of law

1)Voluntary – those instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose.

2)Compulsory or Forced – those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, known as the legitime.

3)Legal or Intestate – those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will.

1. Devisees or legatees - persons to whom gifts of real or personal property are respectively given by virtue of a will

NOTE: The distinctions between heirs and devisees/legatees are significant in these cases:

1. Preterition (pretermission)
2. Imperfect disinheritance
3. After-acquired properties
4. Acceptance or non-repudiation of the successional rights.

1. DEATH OF THE DECEDENT (casual element)

Moment when rights to succeed are transmitted (Art 777)

However, a person may be “presumed” dead for the purpose of opening his succession (see rules on presumptive death). In this case, succession is only of provisional character because there is always the chance that the absentee may still be alive.

1. Inheritance (objective element);

NOTE: Whatever may be the time when actual transmission takes place, succession takes place in any event at the moment of the decedent’s death. (Lorenzo vs. Posadas 64 Phil 353)

SUCCESSION / INHERITANCE
Refers to the legal mode by which inheritance is transmitted to the persons entitled to it / Refers to the universality or entirety of the property, rights and obligations of a person who died

Inheritance includes:

1. PROPERTY, RIGHTS AND OBLIGATIONS NOT EXTINGUISHED BY DEATH

General rules on rights and obligations extinguished by his death

a)Rights which are purely personalare by their nature and purpose intransmissible for they are extinguished by death (e.g. those relating to civil personality, family rights, discharge of office).

b)Rights which are patrimonialor relating to property are generally part of inheritance as they are not extinguished by death.

c)Rights of obligations are by nature transmissible and may constitute part of inheritance both with respect to the rights of the creditor and as regards to the obligations of the debtor.

1. ALL WHICH HAVE ACCRUED THERETO SINCE THE OPENING OF SUCCESSION (Article 781 Civil Code)

I. Testamentary Succession

A. CONCEPT

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

NOTE: Thus, a document that does not purport to dispose of one’s estate either by the institution of heirs or designation of devisees/legatees or, indirectly, by effecting a disinheritance, is not to be governed by the law on testamentary succession but by some other applicable laws.

Kinds of Wills:

1. Notarial or ordinary
2. Holographic

Characteristics of a Will:

1. UNILATERAL
2. STRICTLY PERSONAL ACT - The disposition of property is solely dependent upon the testator.

NOTE: The following acts MAY NOT be left to the discretion of a third person: (Article 785, 787 Civil Code)

duration or efficacy of the designation of heirs, devisees or legatees;

determination of the portions which they are to take, when referred to by name; and

determination of whether or not the testamentary disposition is to be operative.

NOTE: However, the following acts MAY be entrusted to a third person: (Article 786 Civil Code)

a. distribution of specific property or sums of money that he may leave in general to specified classes or causes; and

b. designation of the persons, institutions or establishments to which such property or sums are to be given or applied.

3. FREE AND VOLUNTARY ACT – Any vice affecting the testamentary freedom can cause the disallowance of the will.

4.FORMAL AND SOLEMN ACT – The formalities are essential for the validity of the will.

5. ACT MORTIS CAUSA

6. AMBULATORY AND REVOCABLE DURING THE TESTATOR’S LIFETIME

7. INDIVIDUAL ACT – Two or more persons cannot make a single joint will, either for their reciprocal benefit or for another person. However, separate or individually executed wills, although containing reciprocal provisions (mutual wills), are not prohibited, subject to the rule on disposicion captatoria.

1. DISPOSITION OF PROPERTY

B. INTERPRETATION OF WILLS(ArtS. 788-792)

The testator’s intent (animus testandi), as well as giving effect to such intent, is primordial. It is sometimes said that the supreme law in succession is the intent of the testator. All rules of construction are designed to ascertain and give effect to that intention. It is only when the intention of the testator is contrary to law, morals, or public policy that it cannot be given effect.

In case of doubt, that interpretation by which the disposition is to be operative shall be preferred. That construction is to be adopted which will sustain and uphold the will in all its parts, if it can be done consistently with the established rules of law.

Kinds of Ambiguities: (Article 786)

1. LATENT OR INTRINSIC AMBIGUITIES – that which does not appear on the face of the will and is discovered only by extrinsic evidence.

2. PATENT OR EXTRINSIC AMBIGUITIES – that which appears on the face of the will itself

NOTES:

There is no distinction between patent and latent ambiguities, in so far as the admissibility of parol or extrinsic evidence to aid testamentary disposition is concerned.

Extrinsic evidence to explain ambiguities in a will cannot include oral declarations of the testator as to his intention.

The validity of a will as to its form depends upon the observance of law in force at the time it is made. (Art. 795).

If a law different from the law in force at the time of the execution of the will goes into effect before or after the death of the testator, such a law shall not affect the validity of the will, provided that such will was duly executed In accordance with the formalities prescribed by law in force at the time it was made.

AFTER-ACQUIRED PROPERTY (Art. 793)

Gen. Rule: Property acquired during the period between the execution of the will and the death of the testator is NOT included among the property disposed of.

Exception: When a contrary intention expressly appears in the will

NOTE: This rule applies only to legacies and devises and not to institution of heirs.

C. Testamentary Capacity

– refers to the ability as well as the power to make a will.

- must be present at the time of the execution of the will.

Requisites:

1. At least 18 years of age

2. Of sound mind, i.e., the ability to know:

a. the nature of the estate to be disposed of;

b. the proper objects of his bounty; and

c. the character of the testamentary act.

NOTE: The law presumes that the testator is of sound mind, UNLESS:

a. he, one month or less, before making his will, was publicly known to be insane; or

b. was under guardianship at the time of making his will. (Torres and Lopez de Bueno vs. Lopez 48 Phil 772)

In both cases, the burden of proving sanity is cast upon proponents of the will.

Effect of Certain Infirmities:

1. mere senility or infirmity of old age does not necessarily imply that a person lacks testamentary capacity;
2. physical infirmity or disease is not inconsistent with testamentary capacity;
3. persons suffering from idiocy (those congenitally deficient in intellect), imbecility (those who are mentally deficient as a result of disease), and senile dementia (peculiar decay of the mental faculties whereby the person afflicted is reduced to second childhood) do not possess the necessary mental capacity to make a will;
4. an insane delusion which will render one incapable of making a will may be defined as a belief in things which do not exist, and which no rational mind would believe to exist;
5. if the insane delusion touches to subject matter of the will, testamentary disposition is void.
6. a deaf-mute and blind person can make a will (i.e. Art. 807-808). A blind man with a sound and disposing mind can make a holographic will.
7. an intoxicated person or person under the influence of drugs may make a will as there is no complete loss of understanding.

Exception: where the testator has used intoxicating liquor or drugs excessively to such an extent as to impair his mind, so that at the time the will is executed, he does not know the extent and value of his property, or the names of persons who are the natural objects of his bounty, the instrument thus executed will be denied probate for lack of testamentary capacity.

D. Formalities of Wills

(Extrinsic validity)

Common Formalities

1. Every will must be in writing; and

1. Executed in a language or dialect known to the testator.

Special Formalities

I. NOTARIAL OR ORDINARY WILL

1. SUBSCRIPTION – made at the end thereof by the testator himself or by the testator's name written by some other person in his presence and by his express direction;

Subscription refers to the manual act of testator and also of his instrumental witnesses of affixing their signature to the instrument.

1. ATTESTATION AND SUBSCRIPTION - (evidenced by an “attestation clause”) by 3 or more credible witnesses in the presence of the testator and of one another;

Attestation consists in the act of witnesses of witnessing the execution of the will in order to see and take note mentally that such will has been executed in accordance with requirements prescribed by law.

ATTESTATION / SUBSCRIPTION
1. an act of the senses / 1. an act of the hand
2. mental act / 2. mechanical act
3. purpose is to render available proof during probate of will / 3. purpose is identification

1. MARGINAL SIGNATURES – affixed by the testator or the person requested by him to write his name and the instrumental witnesses of the will on each and every page thereof, except the last, on the left margin;

Exceptions to the rule that all of the pages of the will shall have to be signed on the left margin by the testator and witnesses::

(1) in the last page, when the will consists of two or more pages;

(2) when the will consists of only one page;

(3) when the will consists of two pages, the first of which contains all the testamentary dispositions and is signed at the bottom by the testator and the witnesses and the second contains only the attestation clause duly signed at the bottom by the witnesses.

The inadvertent failure of one witness to affix his signature to one page of a testament, due to the simultaneous lifting of two pages in the course of signing, is not per se sufficient to justify denial of probate (Icasiano vs. Icasiano II SCRA 422).

1. PAGE NUMBERINGS – Written correlatively in letters placed on the upper part of each page;

NOTE: This is not necessary when all of the dispositive parts of a will are written on one sheet only.

1. ACKNOWLEDGMENT – Done before a notary public by the testator and the instrumental witnesses.

NOTE: The notary public before whom the will was acknowledged cannot be considered as the third instrumental witness since he cannot acknowledge before himself his having signed the will. If the third witness were the notary public himself, he would have to avow, assent, or admit his having signed the will in front of himself. To allow such would have the effect of having only two attesting witnesses to the will which would be in contravention of Arts. 805 and 806. (Cruz vs. Villasor 54 SCRA 31)

MANNER OF SIGNING:

The use of any signature, marks or design intended by the testator to authenticate renders the will sufficiently signed by the testator.

A signature by mark will be sufficient even if at the time of placing it, the testator knew how to write and is able to do so.

It is sufficiently signed by writing his initials, or his first name, or he may use even an assumed name.

A complete signature is not essential to the validity of a will, provided the part of the name written was affixed to the instrument with intent to execute it as a will.

attestation clause

- memorandum or record of facts wherein the witnesses certify that the will has been executed before them, and that it has been executed in accordance with the formalities prescribed by law.

Absence of this clause will render the will a nullity.

It must state the followingESSENTIAL FACTS:

1. the number of pages used upon which the will is written;

HOWEVER, even if number of pages is omitted in the AC BUT if there is an acknowledgment clause which states the number of pages or the will itself mentioned such number of pages, it may still be considered valid applying the Liberal Interpretation of the law. (Tabuada vs. Rosal)

1. the fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses;

When the testator expressly caused another to sign the former’s name, this fact must be recited in the attestation clause. Otherwise, the will is fatally defective. (Garcia vs. Lacuesta 90 Phil 489)

1. that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another.

TEST OF PRESENCE: Not whether they actually saw each other sign, but whether they might have seen each other sign had they chosen to do so considering their mental and physical condition and position with relation to each other at the moment of inscription of each signature. (Jaboneta vs. Gustilo)

In the case of an ordinary or attested will, its attestation clause need not be written in a language or dialect known to the testator since it does not form part of the testamentary disposition.

The language used in the attestation clause likewise need not even be known to the attesting witnesses. Art. 805 merely requires that, in such a case, the attestation clause shall be interpreted to said witnesses. (Caneda vs. CA 222 SCRA 781)

Effects of defects or imperfections in the Attestation Clause:

If the defect of the attestation clause goes into the very essence of the clause itself or consists in the omission of one, some, or all of the essential facts, and such omission cannot be cured by an examination of the will itself, the defect is substantial in character, as a consequence of which the will is invalidated.

However, In the absence of bad faith, forgery, 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 Art. 805 (formal requirements). This is known as the Doctrine of Liberal Interpretation (Art. 809)

Purposes of requiring witness to attest and to subscribe to a will:

1. identification of the instrument
2. protection of the testator from fraud and deception
3. the ascertainment of the testamentary capacity of the testator.

NOTE: Certain points to consider (Tolentino)

1. Mere knowledge by testator that another is signing, and acquiescing in it, there being no express direction, is NOT sufficient.
2. Not required that the name of the person who writes the testator’s name should also appear on the will; enough that testator’s name is written.
3. If the required numbers of attesting witness are competent, the fact that an additional witness, who was incompetent also attested to the will, cannot impair the validity.
4. Immaterial in what order the acts are performed provided the signature or acknowledgment by the testator and the attestation of the witnesses be accomplished in one occasion, and as part of one transaction.
5. The law refers to page and not to sheet or leaf or folio, so every page used in the will should be signed on the left margin.
6. An attestation clause need be signed ONLY by the witnesses and not by the testator as it is a declaration made by the witnesses.
7. date of will:

1. ordinary will: not an essential part;
2. holographic will: an essential part.

1. Failure or error to state the place of execution will not invalidate the will.
2. Signing of a will by the testator and witnesses and acknowledgment before a notary public, need not be a single act.
3. Testamentary capacity must also exist at the time of acknowledgment.

ADDITIONAL REQUIREMENTS FOR SPECIAL CASES

1. Deaf or deaf-mute testator:

a)personal reading of the will, if able to do so; OR

b)if not possible, designation of 2 persons to read the will and communicate to him, in some practicable manner, the contents thereof. (Article 807)

1. Blind testator:

Double-reading requirement:

1. first, by one of the subscribing witnesses, AND
2. second, by the notary public before whom the will is acknowledged. (Article 808)

Art. 808 applies not only to blind testators but also to those who, for one reason or another are incapable of reading their wills (e.g. poor, defective or blurred vision).

In a case where the testator did not read the final draft of the will, but the lawyer who drafted the document, read the same aloud in the presence of the testator, 3 witnesses, and notary public, the Court held that the formal imperfections should be brushed aside when the spirit behind the law was served though the letter was not. (Alvarado vs. Gaviola 226 SCRA 347)