WILLS AND SUCCESSION

General Provisions
Articles 774-782

With this module, we begin our online course in Wills and Succession. Like many
professors in law school, I recently went from face-to-face teaching to online teaching with
little time to prepare. To help me chart my path forward, I needed to revisit my teaching
philosophy to the new situation. My revisited philosophy consists of three short phrases:

Concepts are crucial. The point here is about important concepts in the course that you
need to understand. Accordingly, I believe that this question and answer online teaching
method will make it easier for me to drive home a concept.

Process over product. The path that will direct you to the product is just as important as
the product itself, if not more so. This is why I incorporated in this course case briefing and
other assignments to allow you to work through a process of self-evaluation.

Relationships rule. I know that despite my efforts, you may have difficulty learning the
concepts in this course. For this reason , I will keep an open line for you to call or visit me
at any time for further clarification of certain concepts.

Let’s begin.
QUESTION NO. 1

What is succession?

Succession is a mode of acquisition by virtue of which the property, rights and obligations
to the extent 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, CC)
QUESTION NO. 2

Based on its definition, what are the important elements of succession?

As defined, succession has the following important elements:

a. it is a mode of acquisition of ownership;

b. it involves transfer of property, rights and obligations to the extent of the value of the
inheritance of a person;
c. it involves transmission of property through death (not during life);
d. the transfer of property is in favor of another person; and
e. the transfer of property is by will or by operation of law (Art. 774, CC)
QUESTION NO. 3

What are the different modes of acquisition of ownership under the Civil Code?

Under Article 712 of the Civil Code, ownership of property may be acquired by:

a. donation (inter vivos)

b. prescription
c. intellectual creation
d. succession (mortis causa)
e. tradition or delivery as a consequence of certain contracts
f. occupation
g. law
QUESTION NO. 4

Is the distinction between a donation inter vivos and a donation mortis causa
important?

Yes, because the validity or revocation of a donation depends upon its nature. In particular,
the distinction is important to determine the following:

a. effectivity of the donation

b. transmission of ownership to the donee
c. revocation of the donation by the donor
d. effect when donee predeceases the donor
e. formalities required by law
QUESTION NO. 5

Explain briefly the distinctions between a donation inter vivos and a donation
mortis causa?

A. As to effectivity of the donation

A donation inter vivos takes effect during the lifetime of the donor, while a donation mortis
causa takes effect after the death of the donor.

B. As to transmission of ownership to the donee

In a donation inter vivos, ownership of the property is transferred to the donee during the
donor’s lifetime, while in a donation mortis causa, ownership is transferred only after the
donor’s death.

C. As to revocation of the donation

A donation inter vivos is essentially irrevocable; therefore, the donor may revoke it only for
authorized causes. A donor or testator is revocable by the donor at will; therefore, the donor
may revoke the donation mortis causa for any cause during his lifetime.

D. As to legal effect of donee dying before the Donor

A donation inter vivos remains valid even if the donor survives the donee, while a donation
mortis causa becomes void if the donee dies before the donor.

E. As to formalities required by law

A donation inter vivos must comply with the formalities for donations under Articles 748
and 749 of the Civil Code, while a donation mortis causa must comply with the formalities
for notarial and holographic wills.
QUESTION NO. 6

Donor signs a document denominated as “Deed of Donation Inter Vivos” involving

a farmland. The deed is signed by two witnesses and contains the following
provision:

“That in consideration of the love and affection of the DONOR for the
DONEE, the latter being adopted and having been brought up by the
DONOR, the DONOR transfers and conveys BY WAY OF DONATION,
unto the DONEE the property above-described, to become effective
upon the death of the DONOR, but in the event that the DONEE should
 die before the DONOR, the present donation shall be deemed
rescinded and of no further force and effect; Provided, that at any time
during the lifetime of the DONOR or anyone of them who should
survive, they could use, encumber or even dispose of the parcel of land
herein donated.”

Is the donation inter vivos or mortis causa?

The donation is mortis causa for the following reasons:

a. It conveys no title or ownership to the donee before the death of the donor because the
latter retains the full or naked ownership and control of the property while alive;

b. Before the death of the donor, the transfer is revocable by the donor at will; and

c. The transfer is void if the donor should survive the donee.

The phrase “to become effective upon the death of the DONOR” admits of no other
interpretation than to mean that Donor did not intend to transfer ownership of the
property to Donee during Donor’s lifetime. Furthermore, the statement “anytime during
the lifetime of the DONOR or anyone of them who should survive, they could use, encumber
or even dispose of any or even all the parcels of land herein donated” means that Donor
retained ownership of the lot and reserved in him the right to dispose it. For the right to
dispose of a thing without other limitations than those established by law is an attribute of
ownership. The phrase in the Deed of Donation “or anyone of them who should survive” is
out of sync. For the Deed of Donation clearly stated that it would take effect upon the death
of the donor; hence, said phrase could only have referred to the donor.

The donation being then mortis causa, the formalities of a will should have been observed
but they were not; hence, it is void. Being void, it transmits no right to Donee.
QUESTION NO. 7

Divina was the defendant in a civil case. During the pendency of the case, she died,
and her children were substituted as defendants. If judgment is rendered against
the defendants, can they be held personally liable with their own individual
properties?

Despite the substitution, the children are not liable. The remedy of the plaintiff, the
creditor, is to proceed against the estate of the deceased debtor.
QUESTION NO. 8

When is succession to the estate of a deceased person transmitted?

The rights to the succession are transmitted from the moment of death of the decedent
(Art. 777, Civil Code) thru testamentary, intestate, or mixed succession (Art. 778, Civil Code)
Therefore, before a person’s death, his heirs merely have an inchoate right to his property.
But after death, his heirs own the property, subject to the decedent’s liabilities. They may
dispose of the property even if the property is still under administration.
QUESTION NO. 9

Seller and Buyer enter into a contract of sale of a farmland. Despite Buyer’s full
payment of the price, Seller refuses to execute the proper deed of sale. Buyer sues
for specific performance. Seller defends that the property forms part of his father’s
estate, in respect of which a petition for probate is pending in court, and that
consequently, the contract of sale is void because it was not approved by the
probate court. Both Seller and Buyer were aware of the pending probate
proceedings at the time of the execution of the contract of sale. Rule on the motion.

Motion denied. The rule is settled that hereditary rights are vested in the heir or heirs from
the moment of the decedent’s death. (Art. 777, Civil Code) Here, Seller became the owner
of his hereditary share the moment his father died. The lack of judicial approval does not
invalidate the contract of sale because Seller has the substantive right to sell the whole or
part of his share in the estate of his father. Furthermore, the rule is settled that the sale
made by an heir of his share in the inheritance, subject to the pending administration, in
no wise stands in the way of such administration (Opulencia v. Court of Appeals, 293 SCRA
385 [1998])
QUESTION NO. 10

A father sells a parcel of land to a buyer, but has not yet delivered the property by
the time of his death. Are the heirs required to make the delivery?

Yes, because the heirs also inherit the obligations of the deceased which are not
extinguished by death.
QUESTION NO. 11

Tomas died with a will survived by his legitimate children. When Tomas died, his
eldest son sold his entire inheritance to his friend. Is the sale valid?

The sale is valid because the rights of the eldest son to his inheritance became vested upon
his father’s death.
QUESTION NO. 12

Is actual death the only trigger that opens the estate of a person to succession?

No. There are two exceptions:

a. presumed death of a person.

b. judicial dissolution of marriage.

QUESTION NO. 13

What are the kinds of presumed death under the Civil Code?

a. Ordinary presumption because of ordinary absence.

An absentee (who disappears under normal conditions without danger or idea of death)
is presumed dead for the purpose of opening his succession—at the end of ten years (at
the end of five years if he appears after the age of 75).

b. Extraordinary presumption because of extraordinary or qualified absence. Absentee

disappears with strong probability of death.

Under Article 391 of the Civil Code, qualified absence occurs because of strong
possibility of death. The law says that the following are presumed dead for all purposes
including the division of the estate among the heirs:

1. A person on board a missing vessel or a missing airplane, who has not been heard of
for FOUR YEARS since the loss of the vessel or airplane.

2. A person in the Armed Forces who has taken part in war, and has been missing for
FOUR YEARS.
 3. A person who has been in danger of death under other circumstances and his
existence has not been known for FOUR YEARS.
QUESTION NO. 14

Pedro disappears with strong probability of death. Despite diligent efforts, his heirs
failed to find him. When should Pedro be presumed dead?

Pedro is presumed to have died at the time of his disappearance or at the time of the
calamity, not at the end of four years. The presumption of death will arise that death had
occurred four years before. (NOTE: While succession really took place four years before or
on the day of the disappearance, actual division will only be at the end of four years. From
the beginning of the four years, the heir is considered the owner of the property, and not
only from the end of the period.)
QUESTION NO. 15

Maria filed for judicial declaration of presumptive death of her father who has been
missing since 2005. She filed the petition for distribution of her father’s estate. Will
the petition prosper?

No, because the presumption is already established by law. A judicial declaration of

presumptive death is required only for purposes of remarriage under Article 41 of the
Family Code.
QUESTION NO. 16

Yap claims to be an heir of the deceased. When the other heirs refuse to recognize
him, Yap files for declaration of heirship as an independent civil action. Will the
suit prosper?

No. The declaration of heirship must be made in an administration proceeding, and not in
an independent civil action. It is decisively clear that the declaration of heirship can be
made only in a special proceeding as it involves the establishment of status or right (Heirs
of Guido v. Del Rosario, 304 SCRA 18).
QUESTION NO. 17

What is freak succession?

This is succession without the triggering effect of actual or presumptive death. Article 50
of the Family Code gives two instances which require the payment or delivery of
presumptive legitimes before the actual death of the person who is obliged to pay it.

QUESTION NO. 18

Juan Miguel is a compulsory heir of Timoteo. In Timoteo’s will, Juan Miguel stands
to receive more than his legitime. Does it matter whether Juan Miguel dies before
Timoteo?

Yes. If in a will, a compulsory heir is given more than his legitime, he assumes a dual status:

a. Insofar as his legitime is concerned, he is a compulsory heir.

b. Insoar as the excess is concerned, he is a voluntary heir.

The distinction is important because if a compulsory heir dies ahead of the testator, his
legitime will go to his own child by right of representation. On the other hand, the child of
a voluntary heir who predeceases the testator gets nothing from the testator.
QUESTION NO. 19
What rules govern the distribution of a deceased person’s estate?

If a person dies WITH A WILL, his estate is to be distributed in accordance with the rules
on testamentary succession. If he dies WITHOUT A WILL, or with a void will, his estate is
to be distributed in accordance with the rules on intestate succession.

QUESTION NO. 20

Who is an heir?

An heir is a person called to the succession either by the provision of a will or by operation
of law. (par. 1, Art. 782, Civil Code)

NOTE: Heirs may be compulsory (if entitled to the legitime) or voluntary (if named as an
heir to inherit from the disposable portion of the estate.
QUESTION NO. 21

Who is a legatee or devisee?

A legatee or a devisee is a person to whom a gift of personal and real property is respectively
given by virtue of a will. (par. 2, Art. 782, Civil Code)
QUESTION NO. 22

What are the distinctions between heirs and legatees and devisees?

a. Devisees and legatees are always called to succeed to individual items of property. Heirs
are called to succeed to an indeterminate, fractional or aliquot portion of the decedent’s
estate.

b. Devisees and Legatees succeed by particular title, while heirs succeed by universal title.

c. Devisees and legatees are always called to succeed by will, while heirs are called to
succeed either by will or by operation of law.

QUESTION NO. 23

What is the importance of the distinction between heirs on the one hand and
legatees or devisees on the other?

As a general rule, there is no difference in their capacity, effect and solemnities. The
distinction is important only when there is preterition and imperfect disinheritance.

QUESTION NO. 24

What is preterition?

Preterition is the omission in the testator’s will of one, some, or all of the compulsory
heirs in the direct line whether living at the time of the execution of the will or born
after the death of the testator.

QUESTION NO. 25

What are the requisites of preterition?

First: There is total omission in the inheritance.

Second The omission must be of a compulsory heir.
Third: The compulsory heir omitted must be in the direct line.
First Requisite:TOTAL OMISSION IN THE INHERITANCE

⚫ There is preterition even if a compulsory heir is named in the will, but he is not given
any share, the heir not having been expressly disinherited. Reason: Preterition involves
an omission in the inheritance, not in the will.
⚫ No preterition if a compulsory heir is given a share in the inheritance no matter how
small. Reason: The heir is entitled only to the completion of his legitime. (Art. 906, CC)
⚫ No preterition even if a compulsory heir is not given anything in the will, but he had
already received a donation from the testator. Reason: A donation to a compulsory heir
is considered as an advance of the legitime. (Art. 1073 CC)
⚫ No preterition if a compulsory heir is given a legacy, even if less than his legitime. Reason
: Remedy of the aggrieved heir is to demand completion of his legitime.
⚫ No preterition if part of the estate has been given to a compulsory heir, whether indicated
in the will or not.
Second Requisite: OMITTED HEIR MUST BE A COMPULSORY HEIR

⚫ There is no preterition of voluntary heirs or instituted heirs.

⚫ Neither is there preterition of intestate heirs, unless they are compulsory heirs.

Third Requisite: COMPULSORY HEIR OMITTED MUST BE IN THE DIRECT LINE

⚫ There is no preterition of a surviving spouse.

⚫ Although a compulsory heir, the spouse is not an heir in the direct line.

QUESTION NO. 26

What are the effects of preterition?

First Effect: The institution of heirs is automatically annulled or ovided without need of
court action. Intestacy results.

QUESTION NO. 27

T has three legitimate children, A, B and C. T made a will instituting his children, A
and B, and a friend, F, as his sole heirs. C was omitted in the inheritance. Estate is
90,000. How should the estate be distributed?

The preterition of C annuls the institution of A, B and F as T’s heirs. Intestacy results. A, B
and C will each get 30,000. The friend, F, gets nothing.

QUESTION NO. 28

T executed a will containing only one provision whereby he instituted his sister, S,
as his only heir. Surviving T when he died were his parents, F and M, and his sister,
S. How shall T’s estate of 50,000 be distributed upon his death?

The omission of F and M constitutes preterition which will result in the annulment of the
institution of S. Consequently, the entire will is void; estate is to be distributed as in
intestacy.
IMPORTANT: In preterition, the preterited heir gets his share not only of the legitime,
but also of the free portion. This rule differs from a case of imperfect disinheritance where
the disinherited heirs gets only his legitime.

QUESTION NO. 29
In T’s will, he gave F, a friend, a legacy of 10,000; instituted his son, A, as heir; and
deliberately omitted his other son, B. If the estate is 100,000, how should the estate
be distributed on T’s death?

The preterition of B renders the institution of heirs void. The legacy is effective for the
legitime has not been impaired. Therefore, the remaining 90,000 will be divided intestate
as follows:

A = 45,000
B = 45,000
F = 10,000

QUESTION NO. 30
In the previous problem, if the legacy to F had been 60,000 and the other facts are
the same, how would the estate be distributed?

Since the estate is 100,000, the free portion is only 50,000. The legacy of 60,000 should be
reduced by 10,000.

A = 25,000
B = 25,000
F = 50,000

QUESTION NO. 31
In his will, T gave his friend, X, a legacy of 60,000; instituted A and another friend, Y, as
heirs; and deliberately omitted B. If the estate is 100,000, how should the estate be
distributed on T’s death?

The preterition of B renders void the institution of A and Y. The legacy to X, though valid,
is reducible because it impairs the legitime of A and B.

A = 25,000
B = 25,000
X = 50,000
Y=0

QUESTION NO. 32

What is ineffective disinheritance?

Ineffective disinheritance is disinheritance --

1. without specification of the cause. (no cause stated)

2. cause denied by the heir and not proved by the instituted heir. (false cause)
3. cause not given by law. (illegal cause)
QUESTION NO. 33
What are the legal effects of ineffective, imperfect or invalid disinheritance?
First Effect: The institution of heirs is annulled insofar as it may prejudice the person disinherited, or
insofar as the legitime of said heir is impaired.
Second Effect: The devises, legacies and other testamentary dispositions shall be valid to such extent as
it will not impair the legitime.

QUESTION NO. 34
Testator T has three legitimate children: A, B, and C. In his will, T disinherited A and instituted
B and C as his heirs. The disinheritance of A was invalid because it was for a cause not provided
by the law. If the hereditary estate is 90,000, how shall the distribution be made?

The institution of B and C remains valid, but their shares are to be reduced to give A his legitime. Had
there been preterition here, each would receive 30,000 each. Therefore:

A - 15,000
B - 37,500 (15,000 plus 22,500)
C - 37,500 (15,000 plus 22,500)

QUESTION NO. 35
Estate is 100,000. T gave a legacy of 70,000 to a friend, X. Y, a legitimate child, was
ineffectively disinherited. How much should X and Y get?

X (legatee) gets only 50,000. The legacy to him is reducible by 20,000 so as not to impair
Y’s legitime. Y (disinherited heir) gets his legitime of 50,000.

QUESTION NO. 36
In his will, testator T--

a. disinherits his daughter, A, because “she married a good for nothing gigolo despite my
repeated warnings that she shouldn’t marry him.”
b. omits his wife, W.
c. leaves a legacy of 10,000 to his mistress, M, and 5,000 to his driver, E. and
d. institutes his son, B, as his sole heir.

Distribute T’s estate of 100,000.

The disinheritance of A was ineffective because the ground relied upon by T does not
constitute a valid ground for disinheritance under Article 919 of the Civil Code. Hence, the
testamentary provisions in the will shall be annulled but only to the extent that A’s legitime
was impaired.

The total omission of W does not constitute preterition because she is not a compulsory
heir in the direct line. Only compulsory heirs in the direct line may be the subject of
preterition. Not having been preterited, she is entitled to her legitime.

The legacy in favor of M is void under Article 1028 of the Civil Code for being in
consideration of her adulterous relations with T. She is, therefore, disqualified to receive
the legacy of 10,000.

The legacy of 5,000 in favor of E is not inofficious because it does not exceed the free portion. Hence, E
shall be entitled to receive it.

The institution of B, which applies only to the free portion, shall be respected.

In sum the estate of T will be distributed as follows:

A 25,000
B 45,000
W 25,000
E 5,000
M 0

QUESTION NO. 37
If all other facts in the previous problem are the same, except that the disinheritance of A was
for a valid cause, how shall T’s estate be distributed?
A 0
B 50,000 (legitime)
20,000 (by institution)
W 25,000 (legitime)
D 5,000 (legacy)
M 0

QUESTION NO. 38

What are The effects of a valid disinheritance?

⚫ Heir is deprived of his legitime.
⚫ Children of the disinherited child can represent the latter, but the right of representation extends
only to the legitime. (Art. 923, CC)
⚫ There is no right to represent a disinherited spouse or disinherited parent.