POINTERS TO REMEMBER

TESTAMENTARY INTESTATE/ COMPULSORY

(WITH A WILL) (WITHOUT A WILL)
other half is subject to rights of illegitimate children, surviving spouse and free portion. No express statement of testator

Surviving Spouse:
Surviving Spouse

1.Alone ,only ½ 1. Legitimate Kids

If the marriage between the surviving spouse and the testator was solemnized in articulo SS is same share of EACH legit children (even if with illeg—1/2 to share of each legit
mortis, and the testator died within three months from the time of the marriage, the legitime child)
of the surviving spouse as the sole heir shall be one-third of the hereditary estate,

except when they have been living as husband and wife for more than five years. In the latter
case, the legitime of the surviving spouse shall be that specified in the preceding paragraph. 2. Brothers and Sisters ½, ½

Legitime of surviving spouse when he/ she survives alone:

General rule -- 1/2; Free portion -- 1/2
Exception -- Marriage in articulo mortis -- 1/3; Free portion -- 2/3 3. Legitimate Parents ½, ½
Illegitimate Kids ½, ½

Combination Parent ½ , (SS ¼, illegit kids ¼ )

2.with Parent

Illegitimate Parent ¼, ¼
Legitimate Parent ½, ¼ (if with illeg children ¼, spouse 1/8 )

REPRESENTATION

Descendant of the heir is raised to the place and degree of the person represented.

3.with illegitimate Children 1/3 , 1/3

Grounds:
1.Predecease
2.Disinheritance
4.with legitimate Children 3.Incapacity or unworthiness to succeed.

1 legitimate (1/2) , spouse ¼

2/more legitimate children-- spouse (equal to legitime of each)
Even if all renounces or even if there
are illegitimate children which consists of ½ of each
legit children

2006 BAR (*): Don died after executing a Last Will and Testament leaving his estate valued
at P12 Million to his common-law wife Roshelle. He is survived by his brother Ronie and his
half-sister Michelle

(* Question No.10 on the 2006 Bar Examination).

Parents or Ascendants Only: 1. Was Don’s testamentary disposition of his estate in accordance with the law on
succession?

A1 A2 B1 B2 Yes, Don’s testamentary disposition of his estate is in accordance with the law on
\ / \ / succession.
A B Don has no compulsory heirs not having ascendants, descendants nor a spouse (art
\ / 887)
\ / Brothers and Sisters are not compulsory heir.
\ / . Thus, he can bequeath his entire estate to anyone who is not otherwise
X incapacitated to inherit from him. A common law wife is not incapacitated under
the law, as Don is not married to anyone.

Line of A&B, ½ 2. If Don failed to execute a will during his lifetime, as his lawyer, how will you
Line of A1,A2,B1 & B2= ¼ distribute his estate?

After paying the legal obligations of the estate, I will give Ronie (as full brother of
Don) 2/3 of the net estate—twice the share of Michelle (the half sister) who shall
receive 1/3. Roshelle will not receive anything as she is not a legal heir (Art 1006)

SUBSTITUTION (APPLICABLE TO TESTATE ONLY)

3. Assuming he died intestate survived by his brother Ronie ,his half-sister
It may be SIMPLE or FIDEI COMMISSARY Michelle and his legitimate son Jayson, how will you distribute his estate?
There must be an express statement of testator with regard the substitution.
Jayson will be entitled to the entire P12 Million as the brother and sister will be
“I institute A, but in case …. Then B will substitute him.” excluded by a legitimate son of the decedent. Since,according to 4blue 95 ,this
follows the principle of proximity where “the nearer excludes the farther”

Grounds:
Predecease 4. Assuming further he died intestate, survived by his father Juan, his brother
Renunciation Ronie,his half-sister Michelle and his legitimate son Jayson, how will you
Incapacity distribute his estate?

Jayson will be entitled to the entire P12 Million as the father, brother or sister will
Renunciation of share will not pass to heir of the party who renounce. But if all renounces, then be excluded by a legitimate son of the decedent. This,according to 4blue95 follows
pass the shares to next line. the principle that the descendant exclude the ascendants from inheritance.

If predecease, it will pass to next line.

 DISINHERITANCE.

No disinheritance in LEGAL succession. And that disinheritance is not annulled by DISINHERITANCE OF ASCENDANTS:
preterition.
Art. 920. The following shall be sufficient causes for the disinheritance of parents or
4blue95 notes:A testator cannot deprive his compulsory heir of his legitime unless expressly ascendants, whether legitimate or illegitimate:
provided by law. The law expressly provides only one way, valid disinheritance.

Requisites: (1) When the parents have abandoned their children or induced their daughters to live a
1. Made in a valid will. (Art. 916.) corrupt or immoral life, or attempted against their virtue;
2. Identity of the heir is clearly established
3. For a legal cause. (Articles 919 to 921.) (2) When the parent or ascendant has been convicted of an attempt against the life of the
4. Expressly made testator, his or her spouse, descendants, or ascendants;
5. Cause stated in the will.
6. Absolute or unconditional (not "if he doesn't apologize.") (3) When the parent or ascendant has accused the testator of a crime for which the law
7. Total prescribes imprisonment for six years or more, if the accusation has been found to be false;
8. Cause must be true and if challenged by the heir, it must be proved to be true (proponent of
disinheritance has the burden of proof.) (4) When the parent or ascendant has been convicted of adultery or concubinage with the
spouse of the testator;

(5) When the parent or ascendant by fraud, violence, intimidation, or undue influence
DISINHERITANCE OF DESCENDANTS: causes the testator to make a will or to change one already made;

Art. 919. The following shall be sufficient causes for the disinheritance of children and
descendants, legitimate as well as illegitimate: (6) The loss of parental authority for causes specified in this Code;

(1) When a child or descendant has been found guilty of an attempt against the life of the FC does not include all causes of loss of parental authority. Exception: Adoption, age of
testator, his or her spouse, descendants, or ascendants; majority.
The grounds refer to those which involve the same moral culpability. Exception: Articles 229,
Attempt against the life, etc.-- Final conviction is necessary. par. 4, 230 and 231 of FC.
"Attempt" is a generic term which includes all kinds of commission, whether frustrated or
consummated.
Intent to kill must be present.
(7) The refusal to support the children or descendants without justifiable cause;
(2) When a child or descendant has accused the testator of a crime for which the law
prescribes imprisonment for six years or more, if the accusation has been found groundless;
Elements: (8) An attempt by one of the parents against the life of the other, unless there has been a
a. Accusation is a generic term which includes: reconciliation between them.
(i) filing of an information; This does not need conviction. Exception: When they reconcile.
(ii) presenting incriminating evidence; This presupposes that there is no disinheritance yet. Losses right to disinherit upon reconciliation
(iii) acting as a witness against the ascendant. But what if already disinherited before reconciliation? This is not clear. But it should be
b. Imprisonment of more than six (6) years considered revoked bec. in case of doubt, resolve against disinheritance.
c. Accusation is groundless.-- Ascendant is acquitted on the finding that:
(i) there is no crime; or
(ii) that the ascendant did not commit it.
If the ascendant was acquitted on reasonable doubt, the ascendant cannot disinherit because the
accusation is not groundless.

(3) When a child or descendant has been convicted of adultery or concubinage with the Enumerates 3 grounds:
spouse of the testator;
Adultery and concubinage.-- This needs conviction. E.g., When your parent remarries someone a. Abandonment by parent of his children.-- In abandonment, there are two (2) views:
young and you have an affair with that person.
1. Strict.-- Leaving them alone while still children under circumstances that would
(4) When a child or descendant by fraud, violence, intimidation, or undue influence causes endanger them.
the testator to make a will or to change one already made; 2. Accepted.-- Any case where a parent, without justifiable cause, withholds his
Fraud, violence, intimidation or undue influence as regards the will.-- This goes into the very care. E.g., Leaving someone at the doorstep.
essence of will-making-- the freedom deprived by the child or descendant.
It does not mention prevent because if he was prevented, how can he make a will of b. Induced their daughter to live a corrupt or immoral life.-- Does it include grandparents to
disinheritance? Prevention is a ground for unworthiness (Art. 1032, par. 7) which has the same granddaughters? Yes. The provision covers ascendant's vis-à-vis descendants.
effect as disinheritance.
c. Attempt against their virtues.-- Mere attempt is enough as long as it can be proven.
Note: In all 3 cases, conviction is not required.
(5) A refusal without justifiable cause to support the parent or ascendant who disinherits
such child or descendant;
Refusal to support without justifiable cause.-- Refusal, itself, is not a ground; it must be
unjustified.
E.g., In the FC, there is an order of preference for support. The person may be willing to support DISINHERITANCE OF A SPOUSE:
but it is not economically feasible. A person must support his wife and children first. There is
here a justified refusal. Art. 921. The following shall be sufficient causes for disinheriting a spouse:

(6) Maltreatment of the testator by word or deed, by the child or descendants; (1) When the spouse has been convicted of an attempt against the life of the testator, his or
No conviction is required as compared to number 1 wherein conviction is needed. This may be her descendants, or ascendants;
proven by preponderance of evidence. It is possible for an act not to fall in number 1 but to fall in
number 6. (2) When the spouse has accused the testator of a crime for which the law prescribes
E.g., The son shoots his father. The father is wounded but he recovers. The father does not want imprisonment for six years or more, and the accusation has been found to be false;
a scandal so he does not file charges against his son. So, he disinherits his son not under number 1
but under no. 6. (3) When the spouse by fraud, violence, intimidation, or undue influence causes the testator
to make a will or to change one already made;

(7) When a child or descendant leads a dishonorable or disgraceful life;

Leads a dishonorable life.-- This is a catch-all provision. "Leads" denotes habituality. (4) When the spouse has given cause for legal separation;
Dishonorable and disgraceful are based on the sense of the community as perceived by the judge. The only new ground is number 4:
It is not limited to sexual immorality. E.g., drug addict, alcoholic.
4blue95 notes: Legal separation is not a ground. If there is legal separation, you do not need to
(8) Conviction of a crime which carries with it the penalty of civil interdiction. disinherit. Disinheritance takes place by operation of law.
Civil Interdiction.-- Conviction is required. As long as there is cause for legal separation, you can disinherit provided you are the offended
Accessory penalty that goes w/ the principal penalty of reclusion temporal and up. spouse.

4BLUE 95 Notes: Conviction is required in numbers 1, 3 and 8. (5) When the spouse has given grounds for the loss of parental authority;

(6) Unjustifiable refusal to support the children or the other spouse.

2007 BAR QUESTIONS: 2008 BAR QUESTIONS:

BAR: Assume all formalities and procedural requirements have been complied with. In (BAR) Arthur executed a will which contained only: (i) a provision disinheriting his
1970, Ramon and Dessa got married. Prior to their marriage, Ramon had a child, Anna. In daughter Bernice for running off with a married man, and (ii) a provision disposing of his
1971 and 1972, Ramon and Dessa legally adopted Cherry and Michelle respectively. In 1973, share in the family house and lot in favor of his other children Connie and Dora. He did not
Dessa died while giving birth to Larry. Anna had a child, Lia. Anna never married. Cherry, make any provisions in favor of his wife Erica, because as the will stated, she would anyway
on the other hand, legally adopted Shelly. Larry had twins, Hans and Gretel with his get ½ of the house and lot as her conjugal share. The will was very brief and straightforward
girlfriend Fiona. In 2005, Anna ,Larry and Cherry died in a car accident. In 2007, Ramon and both the above provisions were contained in page 1, which Arthur and his instrumental
died. Who may inherit from Ramon and who may not? witness, signed at the bottom. Page 2 contained the attestation clause and the signatures, at
the bottom thereof, of the 3 instrumental witnesses which included Lambert, the driver of
The following may inherit: Arthur; Yoly, the family cook, and Attorney Zorba, the lawyer who prepared the will. There
was a 3rd page, but this only contained the notarial acknowledgement.
1. Michelle, as an adopted child of Ramon, will inherit as a legitimate child of Ramon The attestation clause stated the will was signed on the same occasion by Arthur and his
since she has all the rights of a legitimate child. (Domestic Adoption law) instrumental witnesses who all signed in the presence of eeach other, and the notary public
who notarized the will. There are no marginal signatures or pagination appearing on any of
2. Lia will inherit in representation of Anna. Although Lia is an illegitimate child, she the 3 pages. Upon his death, it was discovered that apart from the house and lot, he had a P
is not barred from Art 992 because her mother Anna is herself illegitimate. She will 1million account deposited with ABC Bank.
represent latter as regard the legitime and intestate share.
a) Was Erica preterited? (1%)
The following may not inherit : No, preterition takes place only when an heir belonging to a direct lines is totally omitted in a will,
in this case Erica is not an heir belonging to a direct line, hence, there is no preterition.
1. Shelly, being an adopted child, cannot represent Cherry because adoption creates a
personal legal relation only between the adopter and the adopted. b) What other defects of the will, if any, can cause denial of probate? (2%)
The following are the defects that may cause denial to probate of the aforementioned will:
2. Hans and Gretel under Art. 992 since being illegitimate ,they cannot inherit ab
intestate from the legitimate relatives of their father or mother (it is different if their 1.Lack of 3 instrumental witnesses as one of them is a lawyer who at the same time is also the one
father is an illegitimate child of Ramon) who notarized the will.

2.Absence of marginal signatures or pagination which should appear on each page except the last
page.
BAR: Clara, drafter a will and asked Roberta ,Hannah, Luisa and Benjamin to be witnesses.
During the day of the signing of her will, Clara fell down the stairs and broke her arms. 3.The acknowledgement does not mention such information as to how many pages the will is
Coming from the Hospital, Clara insisted on signing her will by thumb mark and said that consist of.
she can sign her full name later.
While the will was being signed, Roberta experienced a stomach ache and kept going to the c) Was the disinheritance valid? (1%)
restroom for long periods of time. Yes, to live a dishonorable life is one of the valid grounds for disinheritance.
Hannah, while waiting for her turn to sign, was reading a book on the couch, beside the table
on which everyone was signing. d) How should the house and lot, and the cash be distributed? (1%)
Benjamin, aside from witnessing the will, also offered to notarize it. As to the house and lot, it shall be distributed as follows:
A week after, Clara was run over by a drunk driver while crossing the street in Greenbelt.
May the will of Clara be admitted in Probate? 1.Since it is a conjugal property, ½ of the value shall go to Erica, the surviving wife:

NO, probate should be denied because the requirement that the testator and at least 3 witnesses 2.The other half value of the house and lot together with the P1M cash
must all sign in the “presence” of one another was not complied with. deposit shall be distributed in the following manner:

The testatrix signed her will in the presence of only two witnesses and only two witnesses signed • ¼ of the value shall go to Erica, this represents her legitime. The testator cannot ignore in his
the will in the presence of the testatrix and one another because: will the legitime of the compulsory heirs.
• The remaining ¾ value shall be divided equally between Connie and Dora.
1. Benjamin, who notarized the will is disqualified as a witness hence he cannot be • Since there is a valid disinheritance, Benice shall have no rightto share in the P1M cash deposit
counted as one of the three witnesses even if this was not included in a will. Neither is she entitled to her legitime.

2. Roberta was in the restroom for extended periods of time and inside the restroom
she could not have possibly seen the testatrix and the other witnesses sign the will
by merely casting her eyes in the proper direction. (BAR) John and Paula, British citizens at birth, acquired Philippine citizenship by
naturalization after their marriage. During their marriage the couple acquired substantial
4blue 95: it is to be noted that a thumbmark intended by the testator to be his signature in landholdings in London and in Makati. Paula bore John three children, Peter, Paul and
executing his last will and testament is valid. Mary. In one of their trips to London, the couple executed a joint will appointing each other
The problem however states that Clara said that SHE CAN SIGN HER as their heirs and providing that upon the death of the survivor between them the entire
FULL NAME LATER. Hence, she did not consider her thumbmark as her “complete” signature estate would go to Peter and Paul only but the two could not dispose of nor divide the
and itntended further action on her part. London estate as long as they live. John and Paula died tragically in the London Subway
terrorist attack in 2005. Peter and Paul filed a petition for probate of their parent’s will
before a Makati Regional Trial Court.
4blue 95: The 5-Year PRESCRIPTIVE period for filing legal separation runs from the
occurrence of each act of sexual infidelity. Hence, the prescriptive period for the sexual a) Should the will be admitted to probate? (2%)
infidelity committed in 2003, the prescriptive period runs from 2003 and so on…the action No, the will should not be admitted for probate. A joint will is prohibited under the law on
for legal separation for the last act of sexual infidelity will prescribe in 2010. succession

b) Are the testamentary dispositions valid? (2%)

Assuming that the will is not a joint will. The testamentary disposition is not valid because of
BAR: In 1986, Jennifer and Brad were madly in love. In 1989, because a certain Picasso preterition of compulsory heir and the prohibition on disposition of legitimes by the testator.
painting reminded Brad of her, Jennifer acquired it and placed it in his bedroom.
In 1990, Brad and Jennifer broke up. While Bard was mending his broken heart, he met c) Is the testamentary prohibition against the division of the London estate valid? (2%)
Angie and fell in love. Because the Picasso painting reminded Angie of him ,Brad in his will On the presumption that the will is valid. The testamentary disposition is not valid because under
bequeathed the painting to Angie. Brad died in 1995. Saddened by Brad’s death, Jennifer the law on succession the testator is prohibited to impose any condition or whatsoever upon the
asked for the Picasso painting as a remembrance but Angie refused and claimed that Brad in legitimes.
his will, bequeathed the painting to her. Is Angie correct?

ANSWER 1:
- NO, Angie is not correct. The Picasso Painting was not given or (BAR)Ernesto, an overseas Filipino worker, was coming home to the Philippines after
donated by Jennifer to Brad. She merely “placed it in his bedroom”. working for so many years in the Middle East. He had saved P100,000 in his savings account
Hence, she is still the owner of the painting. in Manila which he intended to use to start a business in his home country. On his flight
Not being the owner of the painting, Brad cannot validly bequeathed home, Ernesto had a fatal heart attack. He left behind his widowed mother, his common-law
the same to Angie. wife and their twin sons. He left no will, no debts, no other relatives and no other properties
ANSWER 2: except the money in his savings account. Who are the heirs entitled to inherit from him and
how much should each receive? (3%)
- YES, Angie is correct. Even Assuming that there was a void
donation because the donation was not in writing, Brad ,who was in Art. 991. If legitimate ascendants are left, the illegitimate children shall divide the inheritance with
uninterrupted possession of the Picasso painting from 1989 to 1995, them, taking one-half of the estate, whatever be the number of the ascendants or of the illegitimate
lasting for 6 years prior to his death, Brad had already acquired children.
ownership of the painting through acquisitive prescription. however, take note that the problem does not state whether the mother was his legitimate parent.
Under Art 1132, Ownership of movables prescribes through maybe you can assume that from the fact that the mother is widowed but i think its safer again to
continuous possession for 4 years in good faith (8 years without qualify (the mother may have been married to another and ernesto's father could have been
need of any other other conditions). A void donation may be the different or maybe ernesto was not born during the marriage).
basis of possession in the concept of owner and of just title for
purposes of acquisitive prescription. if the mother was not legitimate, then she would be excluded by the twin sons applying by analogy
the law on legitimes (art 903).
(BAR)Raymond, single, named his sister Ruffa in his will as a devisee of a parcel of land
which he owned. The will imposed upon Ruffa the obligation of preserving the land and
transferring it, upon her death, to her illegitimate daughter Scarlet who was then only one
year old. Raymond later died, leaving behind his widowed mother, Ruffa and Scarlet.

a) Is the condition imposed upon Ruffa to preserve the property and to transmit it upon her death
to Scarlet, valid? (1%)
Yes, the condition is valid. We have in this case a situation which gives rise to a fideicommissary
substitution whereby Ruffa is burdened with an obligation of preserving the land given to her and
to transfer the same, upon her death, to her illegitimate daughter Scarlet. Further, in order that a
fideicommissary substitution be sustained, the following requisites must concur, to wit:

a. Said substitution must not go beyond one degree;

b. The 1st heir and the 2nd heir must be alive at the time of the testator’s death, that is, there must
be no predecease.

Having complied all the foregoing requirements, the condition imposed upon Ruffa, by way of a
fideicommissary substitution, is valid.

b) If Scarlet predeceases Ruffa, who inherits the property? (2%)

The death of Scarlet (second heir) even before Ruffa (fiduciary) dies shall not, in any way, affect
the rights of Scarlet as regards the parcel of land provided she (Scarlet) died before the testator.
The law provides that the second heir acquires a right to the succession from the time of the
testator’s death even though he should die before the fiduciary. As such, the right of the second
heir shall pass to his heirs who shall subsequently inherit from the latter the subject land. Clearly,
the second heir succeeds and acquires rights, not from the fiduciary, but from the testator himself.

c) If Ruffa predeceases Raymond, can Scarlet inherit the property directly from Raymond? (2%)

(BAR) Stevie was born blind. He went to school for the blind, and learned to read in Braille
language. He speaks English fluently. Can he:

a) Make a will? (1%) Stevie can only make a notarial will but not holographic will.

b) Act as a witness to a will? (1%) Stevie cannot be a witness, as provided for by law.

c) In either of the above instances, must the will be read to him? (1%)
In a notarial will made by Stevie, there is a requirement under the law that such will shall be read
twice, one by the attesting witness and another by the notary public.