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Chapter 2: Testamentary Succession (1) He can give his estate or any portion thereof to

Section 2: Institution of Heir anybody QUALIFIED to inherit from him


(2) BUT he must respect the restrictions imposed
ARTICLE 840. INSTITUTION OF HEIR IS AN ACT BY by special laws`
VIRTUE OF WHICH THE TESTATOR DESIGNATES IN HIS (b) If one has compulsory heirs:
WILL THE PERSON OR PERSONS WHO ARE TO SUCCEED (1) He must respect the legitimes (unless there be a
HIM IN HIS PROPERTY AND TRANSMISSIBLE RIGHTS valid cause for an express disinheritance)
AND OBLIGATIONS. (2) The free portion can, however, be given to
anybody (including the compulsory heirs),
Institution of Heir provided always that restrictions of special laws
- Defined under Art 840 are complied with.
- Voluntary act not allowed to affect the
legitime Why is it Necessary to Adjudicate? Even if only 1 heir is
- Applicable to devises and legacies instituted, there must still be a judicial order of
- Instituted heir ONLY IN TESTAMENTARY adjudication. The order of adjudication is the judicial
SUCCESSION recognition that in instituting an heir, the deceased did
- Art 2015. In order to be capacitated to inherit, not contravene the law, and that the heir was in no way
the heir, devisee or legatee must be LIVING at disqualified to inherit.
the moment the succession opens, except in
case of representation, when it is proper. How Designation of Heir is Made
A child already conceived at the time of ARTICLE 843. The testator shall validly designate the
the death of the decedent is capable of heir by:
succeeding provided it be born later under the - His name and surname
conditions prescribed in Article 41. - When there 2 persons having same names, he shall
- Art. 40 of NCC indicate some circumstance by which the
- Art 41 of NCC instituted heir may be known
- Even though the testator may have omitted the
Requisites for VALID Institution name of the heir, should he designate him in such
(a) The will must be EXTRINSICALLY VALID a manner that there can be no doubt as to who has
- Testator must be capacitated been instituted
- Formalities must be observed
- No vitiated consent Effect of Doubt: NO ONE INHERITS
- Will duly probated
- Will must be personal act of testator Effect of Error: Mere error in designation of name or
(b) The institution must be valid INTRISICALLY circumstances is NOT important as long as the INTENT
- Legitime must not be impaired IS CLEAR, and there is POSITIVE IDENTIFICATION
- Heir is certain or ascertainable
- No preterition Effect of Misdescription: Misdescription may be
(c) The institution must be EFFECTIVE corrected even by EXTRINSIC EVIDENCE (any other
- No predecease manner) but NOT by oral declarations of the testator.
- No repudiation by the heir
- No incapacity of the heir Effect of Disposition in Favor of Unknown Person (one
cannot be identified in the will; not one who is a
When is Adjudication by an Heir of the Decedents stranger to the testator): VOID unless by some event or
Entire Estate to Himself by Means of Affidavit Allowed? circumstance his identity becomes certain (Art 845)
Only if he is the SOLE HEIR of the Estate [determining circumstance
- my student in IV-A who will get the
Non- Necessity of Institution of Heir (Art 841) highest grade
A will, unless otherwise defective, is valid, even if: - May occur before or after testators
(a) THERE IS NO INSTITUTION OF HEIR death]
- Court can assign an executor/
administrator Effect of Disposition in Favor of definite Class or Group:
(b) THE INSTITUTED HER IS GIVEN ONLY A PORTION VALID
OF THE ESTATE
- Only Aliquot Part Special Kinds of Class Institutions:
- Mixed Succession is allowed (a) Of poor in general (Art 1030)
(c) THE HEIR INSTITUTED SHOULD REPUDIATE OR (b) Relatives of the testator (Art 959)
BE INCAPACITATED (c) A person and his children (Art 849)
- Because the no one can be forced to (d) Brothers and sisters of the full and half-blood 9Art
accept something gratuitously even if it 848)
be an inheritance (e) The institution of descendants or relatives of a
legatee
Rules for Freedom of Disposition of Estate (Art 842)
(a) If one has no compulsory heirs:
ARTICLE 846. HEIRS INSTITUTED WITHOUT Effect if Institution Because of Illegal Cause: Under NCC,
DESIGNATION OF SHARES SHALL INHERIT IN EQUAL it is believed that distinction must be made:
PARTS with respect to the legitime of the compulsory (1) If the real motive was illegal, the institution
heirs. should be void.
(2) If the real motive is generosity, liberality, or
ARTICLE 847. WHEN THE TESTATOR INSTITUTES SOME affection and the illegal cause is only incidental,
HEIRS INDIVIDUALLY AND OTHERS COLLECTIVELY, the institution should be considered valid.
THOSE COLLECTIVELY DESIGNATED SHALL BE
CONSIDERED AS INDIVIDUALLY INSTITUTTED, UNLESS Effect of Estrangement:
IT CLEARLY APPEARS THAT THE INTENTION OF THE Mere estrangement is not a legal ground for
TESTATOR WAS OTHERWISE. disqualification of a surviving spouse as an heir of the
Ex. I designate as my heirs A, B and the 3 children of C deceased spouse. (Capotle vs Elbambuena, 509 SCRA
to my estate of Php 100,000 444 [2006])
- Each will get Php 20,000 [5 heirs]
Effect of Institution to a Part of the Estate (Aliquot Part):
ARTICLE 848. IF THE TESTATOR SHOULD INSTITUTE HIS Art 852 applies when there is a remainder or
BROTHERS AND SISTERS, AND HE HAS SOME OF FULL- balance and there is NO INTENT to give all to the
BLOOD AND OTHERS OF HALF-BLOOD, instituted heir or heirs. If there is such INTENT, the
THE INHERITANCE SHALL BE DISTRIBUTED remainder should be divided proportionately, applying
EQUALLY, UNLESS A DIFFERENT INTENTION APPEARS Art 852. [Note: Intestate succession will not apply to the
(As to Testamentary Succession as to the Free Portion; remainder if the same has been disposed of by way of
not the legitime) legacies or devises]

As to Intestacy: Art 1006. The brother of the full-blood ARTICLE 851. IF THE TESTATOR HAS INSTITUTED ONLY
gets double the share of the brother of the half-blood ONE HEIR, AND THE INSTITUTION IS LIMITED TO AN
ALIQUOT PART OF THE INHERITANCE, LEGAL
ARTICLE 849. WHEN THE TESTATOR CALLS TO THE SUCCESSION TAKES PLACE WITH RESPECT TO THE
SUCCESSION A PERSON AND HIS CHILDREN, REMAINDER OF THE ESTATE.
THEY ARE ALL DEEMED TO HAVE BEEN THE SAME RULES APPLIES, IF THE TESTATOR
INSTITUTED SIMULTANEOUSLY AND NOT HAS INSTITUTED SEVERAL HEIRS EACH BEING LIMITED
SUCCESSIVELY. TO AN ALIQUOT PART, AND ALL THE PARTS DO NOT
- Deemed/ presumed if contrary intention COVER THE WHOLE INHERITANCE.
appears, that intention follows
- Ex. Institute A and His 2 children to estate of Php ARTICLE 852. IF IT WAS THE INTENTION OF THE
30,000 each gets Php 10,000 TESTATOR THAT THE INSTITUTED HEIRS SHOULD
BECOME SOLE HEIRS TO THE WHOLE ESTATE, OR THE
Effect of Statements of False Cause for Institution: WHOLE FREE PORTION, AS THE CASE MAY BE, AND
The false cause is considered as not written EACH OF THEM HAS BEEN INSTITUTED TO AN ALIQUOT
unless it appears from the will that the testator would PART OF THE INHERITANCE AND THEIR ALIQUOT
not have made such institution if he had known the PARTS TOGETHER DO NOT COVER THE WHOLE
falsity of such cause. (Art 850) INHERITANCE, OR THE WHOLE FREE PORTION, EACH
- What is disregarded is the false cause, not the PART SHALL BE INCREASED PROPORTIONATELY.
institution
- Reason: The real cause is the testators liberality, Effect of Institution Exceeds Estate:
the mention of the bat topping being merely Article 853. If each of the instituted heirs has
incidental, for even had X topped the bar, the been given an aliquot part of the inheritance, and the
testator would not have been bound to reward parts together exceed the whole inheritance, or the
him, were it not for the provision of the will. whole free portion, as the case may be, each aprt shall
- Evidence of Intent Must Appear in the Will and be reduced proportionately.
proof outside the will is admissible in proving such
intent. PRETERITION (ART 854)
- Austria vs Reyes, 31 SCRA 754: If children who are Is the omission, whether intentional or not, of a
invalidly adopted are instituted as heirs, the COMPULSORY HEIR in the inheritance of a person.
institution should remain valid. As much as
possible, intestacy ought to be avoided, and the It of the essence of preterition that there be a complete
testators wishes should be given effect. The forgetfulness, not in the will necessarily, but in the
allegation that the institution should be void inheritance (testate, intestate or mixed)
because it was based on a false cause, the testator
thinking that they had to be instituted because of
the adoption, is no merit because there is nothing
in the will to indicate that had the testator known
the invalidity of the adoption, the institution of the
children would not have been made.
ARTICLE 854. THE PRETERITION OR OMISSION OF ONE, compulsory heir. Stated otherwise, even if the
SOME, OR ALL OF THE COMPULSORY HEIRS IN THE surviving spouse is a compulsory heir, there is
DIRECT LINE, WHETHER LIVING AT THE TIME OF THE no preterition even if she is omitted from the
EXECUTION OF THE WILL OR BORN AFTER THE DEATH inheritance, for she is not in the direct line.
OF THE TESTATOR, SHALL ANNUL THE INSTITUTION OF
HEIR; BUT THE DEVISES AND LEGACIES SHALL BE VALID Effect of Preterition:
INSOFAR AS THEY ARE NOT INOFFICIOUS. (a) The institution of the heirs is annulled VOID
IF THE OMITTED COMPULSORY HEIRS SHOULD (b) Although the institution of heirs is indeed annulled,
DIES BEFORE THE TESTATOR, THE INSTITUTION SHALL the legacies and devises shall remain valid insofar as
BE EFFECTUAL, WITHOUT PREJUDICE TO THE RIGHT OF there are not in officious THEY ARE VOIDED BUT
REPRESENTATION. MERELY REDUCIBLE IF THE LEGITIME IS IMPAIRED

Requisites of Preterition Where Share of Omitted Heir Must be Taken (Art 855)
(1) There is TOTAL omission in the inheritance ARTICLE 855. THE SHARE OF A CHILD OR DESCENDANT
There is Preterition in the following: OMITTED IN A WILL MUST FIRST BE TAKEN FROM THE
(a) If the compulsory heir is named in the PART OF THE ESTATE NOT DISPOSED OF BY THE WILL,
will but he is not given any share [no IF ANY; IF THAT IS NOT SUFFICIENT, SO MUCH AS MAY
express disinheritance] BE NECESSARY MUST BE TAKEN PROPORTIONALLY
FROM THE SHARES OF THE OTHER COMPULSORY
There is NO Preterition in the following: HEIRS.
(a) If compulsory heir is given a share in the Applicable when there is preterition or none
inheritance no matter how small, there Applicable when the child receives less than his
is no preterition for under Art 906, he is legitime in the will
entitled only to the completion of his In true case of preterition, Art 855 is useless
legitime because the best procedure would be (in the
(b) If the compulsory heir is not given absence of legacies or devises) just to divide the
anything in the will but he has already property intestate. And if there be allowable
received a donation from the testator legacies or devises, the procedure is almost the
because a donation to compulsory heir same. Just deduct them, and divide the
is considered an advance of the remainder as an intestacy
inheritance or legitime. child or descendant it is believed that Art
(c) Even if the child had not received 855 should apply to also an omitted compulsory
anything by virtue of donation, or by even though not a child or descendant by
virtue of the will, still if anything is left applying provisions of the law.
of the inheritance which he may get by
intestacy, there is no preterition. Again, Effect of Predecease (Art 856):
if what is left him by intestacy is less (a) A voluntary heir who dies before the testator
than his legitime, he is entitled to its transmits nothing to his heirs [this also applies
completion. to legatee or devisee]
(b) A compulsory heir who dies before the testator/
(2) The omission must be of a COMPULSORY HEIR a person incapacitated to succeed/ and one
There can be preterition of legitimate or who renounces the inheritance,
illegitimate compulsory heir, of descendants or Shall transmit no right to his own heirs
of ascendants, in case these ascendants happen except in cases provided for in this code- right
to be the compulsory heir in a given case. Thus, of representation by the heirs of the
the omission of the testators father, when the compulsory heir in behalf of the latter (except
testator institutes his own children is NOT for repudiating/ renouncing compulsory heir)
preterition; but the omission of one or both
parents when there are no legitimate children Note:
or descendants constitutes PRETERITION, for in Remember that in testate succession, the right of
this case, the parents would be the compulsory representation covers only the legitime (not free
heirs. portion). In intestate succession, it covers the entire
share of the person represented. The whole would
(3) The compulsory heir must be in the DIRECT LINE descend by the rules of instestate succession.
In Acain vs IAC, et al (L-72706 [1987]), it
consists in the omission in the testators will of The representative [the person inheriting by right of
the forced heirs from the direct line or anyone representation] does not succeed the person
of them either because they are not mentioned represented, but one whom the person represented
therein, or, though mentioned, they are neither would have succeeded.
instituted as heirs not are expressly
disinherited.
In so far as the widow is concerned, Art
854 of CC may not apply as she does not ascend
or descend from the testator, although she is a