SUCCESSION: ATTY.

CRISOSTOMO URIBE

REVIEWER BY; MARK NINO DE ASIS

SAN SEBASTIAN COLLEGE OF LAW ART.774-SUCCESSION is 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. 712-OWNERSHIP is acquired by occupation and by intellectual creation. Ownership and other real rights over property are required and transmitted by law, by donation, by testate and intestate succession and in consequence of certain contracts, by tradition. Example of a contract of tradition= a contract of sale They may also be acquired by means of prescription. ART. 1311-CONTRACTS take effect only between the parties, their assigns and heirs, EXCEPT in case where the rights and obligations arising from the contract are not transmissible by their nature , or by stipulation , or by provision of law. The heir is not liable BEYOND the value of the property he received from the decedent. If a contract should contain some stipulation in favor of a 3rd person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favour upon a 3rd person. BASIS OF LAW OF SUCCESSION 1) based on family relations- creates rights and obligations . successional right a right founded on duty

Thus, family relations can be pointed out as the basis of the law of intestate succession and the law of legitimes 2) springs from natural law product of his efforts and works will be enjoyed by those natural objects of his affection within the family. 3) a corollary to the right of property- w/o succession ,right of ownership would be an imperfect thing. Thus, the right of property can be the only explanation for the law on testamentary succession .

LEGAL PHILOSOPHY OF THE NEW CODE ON SUCCESSION-(socialization of ownership) Art.1028-the prohibitions in donations inter vivos ,based on considerations of morality ,are expressly made applicable to testamentary succession. Art-863 Fideicommissary substitutions have been limited to 1 degree Art.888-the free portion has been increased from 1/3 to of the estate of the decedent when children and descendants survive. Art. 887 & Art. 988 Illegitimate children who did not have successional rights under the old code, have been given successional rights in the present code. Art.1010- Right to succeed w/o a will is limited to relatives within the 5th civil degree -The new code has eliminated the substitutions known as pupilar and ejemplar by which a parent or ascendant may appoint substitutes for their children or descendants who may die without making a valid will. FUNDAMENTAL CHANGES IN NCC 1) Greater freedom is given to the testator in choice of the form of his will or testament. 2)Greater facility in the probate of wills is provided by the introduction of the system of probate . 3)Surviving spouse is given a better position in the law of succession. 4)In the legitime of legitimate children and descendants , the mejora or betterment ., consisting of 1/3 Of the estate of the parents or ascendants has been abolished 5) The reservas or reversions with the exception of reserva troncal have been abolished. ****The Controlling factor in determining the effectivity of new successional rights is the death of the person whose inheritance is in question. INHERITANCE VS SUCCESSION INHERITANCE-universality or entirety of the property, rights and obligations of a person who has died .It refers to the objective element of succession to the mass or totality of the patrimony of a deceased person. SUCCESSION is a legal mode by which inheritance is transmitted to the person entitled to it surviving the deceased. B.SUBJECTS OF SUCCESSION

Art.775 A Decedent is the general term applied to the person whose property is transmitted through succession , WON he left a will. If he left a will, he is also called a testator . Art.782- An heir operation of law. is a person called to the succession either by the provision of the a will or by

Devisees and Legatees are persons to whom the gifts of real and personal property are respectively given by virtue of a will. DIFFERENCE _ heir vs legatee (devisee)

An heir answers for all the obligations of the deceased , while, a legatee (devisee) does not respond for such obligations beyond the value of the legacy. 3 KINDS OF HEIRS 1)COMPULSORY HEIRS-are those who succeed by force of law to some portion of the inheritance ,in an amount pre-determined by law ,of which they cannot be deprived by the testator ,except by a valid disinheritance. (succeed regardless of a will) 2) VOLUNTARY OR TESTAMENTARY HEIRS-are those who are instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose., their right to the succession depends entirely upon the will.( succeed by reason of a will) 3)LEGAL OR INTESTATE HEIRS are 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.(succeed in the absence of a will) ART.887- The following are compulsory heirs: 1) legitimate children and descendants, with respect to their legitimate parents and ascendants (also called compulsory primary heirs-)those who have precedence over and exclude other compulsory heirs. (inclusive of legitimated(art.272-274) and adopted children (art.189)} 2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children and descendants.(also called compulsory secondary heirs)-those who succeed only in the absence of the primary heirs. 3) widow or widower. (compulsory concurring heirs)-those who succeed together with the primary or the secondary compulsory heirs 4)Acknowledged natural children , and natural children by legal fiction ; -considered as illegitimate children-(compulsory concurring heirs) 5)other illegitimate children referred to Art.287 (compulsory concurring heirs) COMMENTS:

The law on legitime flows from natural law, it intends that the property of a person should not pass to strangers but to his natural successors . DESCENDANTS-grandchildren-great grand children LEGITIMATED(Art.272 and Art.274/ADOPTED CHILDREN(Art 189)- are considered- legitimate childrencompulsory heir / intestate heir. ILLEGITIMATE PARENTS-are considered compulsory heirs, only in the absence of legitimate or illegitimate children of the decedent. ADOPTING PARENTS-are not compulsory heir of the adopted-the law is silent. SURVIVING SPOUSE- there is a surviving spouse if the marriage is valid and voidable but not in the case of void ab initio(incestuous bigamous) **if bigamous- 2 wives contract the marriage in good faith = they share equally in portion which is the legitime of the surviving spouse. RECONCILIATION- stops the proceedings of legal separation-if one of the spouses died ,the survivor get his/her legitime ,regardless, WON she/he is guilty party. 3 KINDS OF ILLEGITIMATE CHILDREN 1)Acknowledged natural children, 2) natural children by legal fiction ,3) illegitimate children under Art.287 CASE OF LEGAL SEPARATION: Art.106-The offending spouse shall be disqualified from inheriting from the innocent spouse Art.63(4)FAMILY CODE-The law excludes the guilty spouse from the succession, intestate or testate, is evident. In case of legal separation, the widow or widower will be entitled to succeed only if she is the innocent spouse. Art.1003 If there are no descendants, ascendants, illegitimate children, or surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles -1004-1013 Art .1004- Should the only survivors be brothers and sisters of full blood, they shall inherit in equal shares. Art.1005- If Should brothers and sisters survive together with nephews and nieces ,

PART 2 (2ND MEETING) WHO MAY SUCCEED ART.1024-Persons not incapacitated by law may succeed by will or ab intestato(by intestacy)-w/o a valid will The provisions relating to incapacity by will are equally applicable to intestate succession.(makes the provisions relating to incapacity apply equally to testate and intestate succession. GENERAL RULE; Every person has capacity to succeed mortis causa.(Only persons may succeed mortis causa)-in order to be considered person there must be a legal existence or juridical personality. (The presumption of law is always in favor of capacity-in order to deny a person the capacity to succeed , it must be shown that he is excluded by some provisions of law) 2 REQUISITES FOR THE POSSESSION OF CAPACITY TO SUCCEED 1) that there be general civil capacity of the person. 2)that there be no incapacity or prohibition to succeed expressly provided by law. ART. 1027 par.(1,2,3,4,5) is clearly applicable only to testamentary succession the paragraphs under it speak only of the word testator who means a person who left a will. ART.1028-prohibitions concerning donations inter vivos-under Art. 739 are applicable also under testamentary succession. 2 KINDS OF INCAPACITY 1) Absolute-(per se) persons disqualified to succeed in any form, to anyone, or to any quantity of property. 2)Relative-(per accidens)-persons disqualified only with respect to certain persons or property. 3)UNWORTHINESS-means by reason of certain acts a person who has capacity to succeed is deprived of if.-also relative incapacity ART.1025-In order to be capacitated to inherit, the heir, devisee, legatee must be living at the moment the succession opens, except in case of representation , when it is proper.

A child conceived at the time of the death of the decedent is capable of succeeding provided it be born later under the conditions prescribed in Art.41 (ART.41-For civil purposes, a fetus is considered born if it is alive at the time it is completely delivered from the mother s womb. However, if the fetus had an intra-uterine life of less than 7 moths, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb.) **When the institution is under a suspensive condition or from a day certain , the succession does not really open except from the happening of the condition or the arrival of the day certain. SUSPENSIVE CONDITION-the fulfilment of the condition results in the acquisition of the rights arising out of the obligation. RESOLUTORY CONDITION-the fulfilment of the condition result in the extinguishment of rights arising from the obligation. **Only persons succeed and there is no person unless there is juridical existence. ART.777-Rights to the succession are transmitted from the moment of the death of the decedent(then, there must be a subject with juridical capacity to whom the transmission can be made at the precise moment.) ART.37-Juridical capacity, is the fitness to be the subject of legal relations, is inherent in every natural person and is lost only through death. ART.1026-A testamentary disposition may be made to the State, provinces, municipal corporations, private corporations, organizations, or associations for religious , scientific, cultural, educational or charitable purposes. **Not all entities mentioned by the article are persons having juridical existence. They succeed , not by virtue of the general rule of capacity, but by reason of the special provision of this article conferring capacity upon them. ** ART.1029- Should the testator dispose of the whole or part of his property for prayers or pious works for the benefit of his soul, in general terms and without specifying its application, the executor, with the court s approval shall deliver thereof or its proceeds to the church or denomination to which the testator may belong , to be used for such prayers and pious works, and the other half to the State, for the purposes mentioned in Art. 1013. **The disposition under the article does not involve the one which has merely the character of a condition , burden, or charge imposed upon an heir, legatee, or devisee.

**The disposition under this article is for the application of the whole or part of the testator s property for prayers and pious works for the benefit of his soul, but has not yet named any person whether as heir, legatee, or devisee and has not specified the particular prayers or pious works to which his property shall be applied. The disposition made under the article is applicable only when the testator has not provided otherwise in his will. The moment the testator specifies the application to be made , or the person to be charged with such duty, then this property cannot be distributed in the manner prescribed by the article. The article is not applicable when the following has been fixed: 1)place for the prayers 2)dates when they shall be held 3)any other determination of application of the property 4) if the testator should dispose of his property only for pious works without prayers or vice versa **Under the article the real beneficiary is soul of the testator -the article allows dispositions for the benefit of the soul , notwithstanding, that soul does not have a juridical existence because of death. ART.1030-Testamentary provisions in favour of the poor in general, without designation of particular persons or of any community, shall be deemed limited to the poor living in the domicile of the testator at the time of his death, unless it should clearly appear that his intention was otherwise. The designation of the persons who are to be considered as poor and the distribution of the property shall be made by the person appointed by the testator for the purpose ; in default of such person, by the executor, and should there be no executor, by the justice of the peace, the mayor, and the municipal treasurer, who shall decide by a majority of votes all questions that may arise. In all cases, the approval of the Court of First Instance shall be necessary. The preceding paragraph shall apply when the testator has disposed of his property in favour of the poor of a definite locality. **The disposition under the article is in favour of persons who may be unknown to the testator. If no person was appointed or designated by the testator ; The executor or the administrator of the estate shall do so. **Under the Rules of Court, there will invariably be an executor or administrator of the estate. Therefore, the intervention of the justice of the peace, mayor or municipal treasurer can never take place. QUESTION: Can the selection of some as poor be impugned by others? Or Can the determination of the executor or administrator that there are none who qualify to them as poor be contested by persons claiming to be poor? Answer: Yes, In all cases, the approval of CFI shall be necessary.

But, when none qualify as poor, the property should be distributed as in case of intestacy . It will pass to the legal heirs of the testator. QUESTION: Will it not pass to beneficent institutions ordinarily exist as the poor? Answer: No, Unlike Art.1029, the institution of the article is a definite and determined class, whose existence is essential for the validity of the testamentary disposition. In the absence of that class, the disposition is void and to give the property to others not designated by the testator would be to modify his will, not to enforce it. In cases where the express will of the testator cannot be given effect for legal reasons, the law supplies his presumed will in the form of intestate succession . WHO ARE INCAPABLE OF SUCCEEDING? ART.1027-The following are incapable of succeeding: 1)The priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; 2) The relatives of such priest or minister of the gospel within 4th degree, the church, order, chapter, community, organization, or institution to which such priest or minister belong; 3) A guardian with respect to testamentary dispositions given by a ward in his favour before the final accounts of the guardianship have been approved, even if the testator should die after approval thereof; nevertheless, any provision made by the ward in favour of the guardian when the latter is his ascendant, descendant, brother, sister, or spouse, shall be valid. 4) Any attesting witness to the execution of a will, the spouse, parents , or children, or any claiming under such witness, spouse, parents, or children; 5) Any physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness; ***6) Individuals , associations and corporations not permitted by law to inherit . The disqualifications here are applied only to testamentary succession par(1,2,3,4,5 only) (The disqualification here is only relative per accidens they are disqualified only under certain circumstances.-not absolute or per se.) However, par.6 is misplaced-no common basis with the others(par.1,2,3,4,5)- par.6 is absolute-per semeaning absolutely disqualified-they cannot succeed any person at any time or under any circumstances by testament or by intestacy. **The purpose of the article- to safeguard the legal heirs from being defrauded by suggestions of some confessors.-There is a possibility that an unscrupulous confessor or minister may be able to induce his weakened will to follow the latter s suggestions on promises of eternal peace in life.

LAST ILLNESS- means that of which the testator died. ART.1028-The prohibitions mentioned in Art.739, concerning donations inter vivos shall apply to testamentary provisions. Under Art.739: the following testamentary provisions shall be without effect; 1)Those made in favour of a person with whom the testator was guilty of adultery or concubinage at the time of the making of the will. 2)Those made in consideration of a crime of which the testator and the beneficiary have been found guilty. 3)Those made in favour of a public officer or his spouse, descendants, ascendants, by reason of his public office. **These disqualifications are based on considerations of morality, and are intended to prevent circumventing of the prohibitions on donations by resorting to the making of the will as a means of disposing of property in favour of the disqualified donees. A devise given by a married man estranged from his wife for 22 years prior to his death. To a woman with whom he has been living for said period of time, is void ART.1031-A testamentary provision in favour of a disqualified person, even though made under the guise of an onerous contract, or made through an intermediary, shall be void. **The article renders void attempts to go around the prohibitions against dispositions in favour of incapacitated persons. PERSON INTERPOSED- is one who is named in the will as the apparent heir , legatee, devisee, but he is not the one who is really intended to benefit from the testamentary disposition. INTERPOSITION MAY BE MADE BY THE FOLOWING WAYS: 1) by the institution of a person who has capacity, with a verbal charge or direction to deliver the inheritance to the incapacitated person 2) by disguising the disposition in the form of a contract 3) by simulating debts in favour of the incapacitated person DISQUALIFIED PERSONS under the article- does not include those who are such by reason of unworthiness.(priest, guardian, attesting witness to a will, physician , surgeon, nurse , etc.) -those persons who are in a position to wield an influence to the mind of the testator.

Not the following- relatives of the disqualified persons the dispositions made in favour of them is void because the law presumes juris et de jure that they are merely interposed for the benefit of the real incapacitated person. **A testamentary disposition instituting an heir or legatee, with the intention that the relatives mention should ultimately the real beneficiaries , is not such an interposition as is prohibited by the article. **When a testator disposes of his property in a prohibited manner , deliberately violating the law, he must be held to assume the risk that his will may be frustrated. ART.1032-The following are incapable of succeeding by reason of unworthiness: 1)Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtue. 2)Any person who has been convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants 3)Any person who has accused the testator of a crime for which the law prescribes imprisonment for 6 years or more, if the accusation has been found groundless; 4)Any heir of full age who, having knowledge of the violent death of the testator, should fail to report it to an officer of the law within a month, unless the authorities have taken action; this prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation. 5)Any person convicted of adultery or concubinage with the spouse of the testator. 6) Any person who by fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made 7)Any person who by the same means prevents another from making a will, or from revoking one already made , or who supplants, conceals, or alters the latter s will. 8)Any person who falsifies or forges a supposed will of the decedent The cause of incapacity by reason of unworthiness are applicable both to intestate and testate succession. (Incapacity by reason of unworthiness is not absolute, it does not disqualify a person to succeed every other person, it merely disqualifies him to succeed the particular person against whom the act of unworthiness has been committed.) ABANDONMENT OF CHILDREN-under Art.920- is a ground for disinheritance of the parents.(there must be a positive act showing perversion on the part of the parent-he must have led the daughter to live a corrupt or immoral life, or he must have made an attempt against her virtue. INDUCING IMMORALITY-is the fact which shows the moral perversity of the parent. 2 ESSENTIAL ELEMENTS FOR THE CAUSE(ATTEMPT AGAINST LIFE) TO OPERATE;

1)the heir must have an attempt against the life of the decedent, his or her spouse, descendants, or ascendants 2)there must have been a final conviction for such attempt(no conviction-no disinheritance of the heir) ART.1033-The cause of unworthiness shall be without effect if the testator had knowledge thereof at the time he made the will, or if, having known of them subsequently, he should condone them in writing. Executive clemency, or pardon by the President does not erase the unworthiness or incapacity of the heir. EXPRESS PARDON-is made by the execution of a document or any writing in which the decedent condones the cause of incapacity.(the only requisite is that the pardon must be after the act of unworthiness has been committed)-this kind of pardon is immediately operative and irrevocable. IMPLIED PARDON-if the testator had knowledge thereof at the time he made the will.(If the pardon is tacitly made by instituting the disqualified person in a will, the subsequent revocation of the will or the institution should be considered as rendering the pardon ineffective. RECONCILIAITON between the testator and the offender will render the disinheritance ineffective, and the heir will be restored to his inheritance. EFFECT OF PARDON-once the act of unworthiness has been pardoned- WON it is express or impliedthen the heir is restored to full capacity to succeed the decedent. EFFECT OF ALIENATIONS BY THE EXCLUDED HEIR ART.1036-Alienations of hereditary property, and acts of administration performed by the excluded heir , before the judicial order of exclusion, are valid as to 3rd persons who acted in good faith, but the co-heirs have a right to recover damages from the disqualified heir. **The validity of alienations made by the disqualified heir before the declaration of incapacity is made to depend upon the good faith of the transferee, irrespective of the good or bad faith of the heir who made the alienation. *It includes all alienations whether gratuitous or for a valuable consideration. RIGHTS OF THE EXCLUDED HEIR ART.1035-If the person excluded from the inheritance by reason of incapacity should be a child or descendant of the decedent and should have children or descendants , the latter shall acquire the right to the legitime. The person so excluded shall not enjoy the usufruct and administration of the property thus inherited by his children. **Art.1032-Unworthiness disqualifies a compulsory heir from succeeding even to his legitime.

**Art.1035- reserved only to the children and descendants of the unworthy child or descendant (excluded or disqualified heir) the representation to inherit- meaning they shall acquire the rights of the unworthy parents-(unworthy child or descendant) to the legitime. **Children or descendants of the person excluded may get more than the legitime of the latter in case where the unworthy child or descendant is the compulsory heir. ART.1037-The unworthy heir who is excluded from the succession has a right to demand indemnity for any expenses incurred in the preservation of the hereditary property, and to enforce such credits as he may have against the estate. The excluded heir has a right to be indemnified regarding necessary expenses and useful expenses as well as expenses for ornamentation on hereditary property. RIGHTS OF POSSESSOR IN GOOD FAITH(NECESSARY EXPENSES-those incurred for cultivation, production or upkeep-those made for necessary repairs of the house) a) refund b) retain premises till paid RIGHT OF POSSESSOR IN BAD FAITH( NECESSARY EXPENSES) a) entitled to refund only RIGHTS OF A POSSESSOR IN GOOD FAITH (USEFUL EXPENSES-making artificial fishponds-construction of additional rooms in a house-clearing up land formerly thickly covered with trees-erection of chapelthose incurred for an irrigation system) a) right to reimbursement (either the amount spent or the increase in value) b) right of retention (till paid) Art.546 c) right of removal-provided no substantial damage or injury is caused to the principal, reducing its value NO RIGHT FOR A POSSESSOR IN BAD FAITH (USEFUL EXPENSES)-because the law omits it ART.1014-If a person legally entitled to the estate of the deceased appears and files a claim thereto with the court within 5 years from the date the property was delivered to the State, such person shall be entitled to the possession of the same, or if sold, the municipality or city shall be accountable to him for such part of the proceeds as may not have been lawfully spent. LIABILITIES OF THE EXCLUDED HEIR ART.1038-Any person incapable of succession, who, disregarding the prohibition stated in the preceding articles, entered into the possession of the hereditary property, shall be obliged to return it together with its successions.

He shall be liable for all the fruits and rents he may have received, or could have received through the exercise of due diligence. **This provision has for its purpose the restitution of the hereditary property, together with all its fruits and accessions, to the rightful heir and owner. (The obligation to make restoration is imposed upon all incapacitated persons whether the incapacity is absolute, relative or by reason of unworthiness. The question of good faith and bad faith is immaterial under the said article and the rule is laid down only for incapacitated person.-the law conclusively considers incapacitated heir as possessor in bad faith in this article. PRESCRIPTION OF ACTION ART.1040-The action for a declaration of incapacity and for the recovery of the inheritance , devise or legacy shall be brought within 5 years from the time the disqualified person took possession thereof. It may be brought by any one who may have an interest in the succession. 5 years from the moment of possession of the disqualified person-time within which the action to compel such restitution may be brought.(the action here referred to is the action to compel such heir, or legatee to restore the property, its accessions, fruits and rentals.(period of action to recover inheritance) OBJECT OF SUCCESSION ART.776-Inheritance shall includes all the property, rights and obligations of a person which are not extinguished by his death. **Inheritance is limited only to the property , rights and obligations of the person not extinguished by his death. RIGHTS AND OBLIGATIONS EXTINGUIHED BY DEATH 1) Art. 1347: All things which are not outside the commerce of man , including future things, may be the object of a contract. All rights which are not intransmissible may also be the object of a contract. No contract may be entered into upon future inheritance except in cases expressly authorized by law. All services which are not contrary to law, morals, good customs, public order or public policy likewise be the object of contract

4th Meeting TESTAMENTARY SUCCESSION WILLS Art.783- A will is 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. Roman lawyers- defined will as the legal declaration of a man s intentions , which he wills after his death. A will is a disposition made by a competent testator in the form prescribed by law , of property over which he has legal power of disposition, which disposition is of such nature as to take effect at the death of the testator. A will is a personal, solemn, revocable and free act by which a capacitated person disposes of his property and right and declares or complies with duties to take effect after his death. The CC seems to limit the concept of a will to a disposition of property to take effect upon and after death. **It is only when the will disposes of property either directly or indirectly, that it has to be probated. Art. 838- No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court. When there is no disposition of property ( it is submitted that although the instrument may be considered as a will); it does not have to be probated ; its dispositions which are provided by law , such as the acknowledgment of a natural child or the order that the patria potestas of the widow shall continue after her remarriage, can be given effect even without probating the will. Art.916- Disinheritance can be effected only through a will wherein the legal cause therefor shall be specified. ( The law permits a testator to disinherit a compulsory heir for any of the causes provided by law, and the disinheritance is expressly required to be made in a will.) A valid disinheritance is in effect a disposition of the property of the testator in favour of those who would succeed in the absence of the disinherited heir. Unless the will is probated , the disinheritance cannot be given effect. CHARACTERISTICS OF A WILL (as enumerated)

1) It is purely personal act 3) It disposes of property 5) It is formally executed 7) It is a unilateral act

2)It is a free act, without violence, fraud or deceit 4) It is essentially revocable 6) The testator has testamentary capacity 8) It is an act mortis causa, or takes effect upon the death of the testator

A will is not necessarily an act of liberality or generosity (the inheritance may be so burdened with legacies that all the benefit to the heir is nullified. Some cases- there may even be no intent of liberality (ex: legacies in payment of debt) Art .839 The will shall be disallowed in any of the following cases:

(3) If it was executed through force or duress, or the influence of fear , or threats (4)-If it was procured by undue and improper pressure and influence ,on the part of the beneficiary or of some other person *A will shall not be disallowed on dubious grounds. Art. 828- A will may be revoked by the testator at any time before his death Wills by their very nature are ambulatory and inoperative till the death of the testator. During the life of the testator the will is said to be ambulatory, and it maybe altered , revoked , or superseded at any time. DIFFERENCE OF REVOCATION AND NULLITY Revocation-an act of the testator -Presupposes a valid act -takes place during the lifetime of the testator -cannot renounce the right to revoke - can be disregarded by the heirs thru voluntary compliance NULLITY-proceeds from the law -is inherent in the testament ( be it intrinsic or extrinsic defect) - invoked after his death by his intestate or compulsory heir

Art. 796 All persons who are not expressly prohibited by law may make a will **The law presumes capacity to make a will, hence , in order that a person may be disqualified to make one , he must be expressly prohibited by law. **The word person here means only natural persons.

Spendthrift or prodigal is under guardianship, he can make a will, there being no disqualification provided by law. ( A person under civil interdiction{subsidiary penalty for offenses of 12 years and 1 day} can make a will, he is disqualified for the dispositions of property only by act inter vivos , but not by act mortis causa. Art. 797- Persons of either sex under 18 years of age cannot make a will. Q: Is it necessary that the last day of the 18th year shall have already passed or is it sufficient that the last day of the 18th year shall have begun? A: The required age is reached at the commencement of the day preceding the anniversary of the birthday, that is, it is sufficient that the last day of the 18th year shall have commenced. AngloAmerican Rule Art. 798- In order to make a will, it is essential that the testator be of sound mind at the time of the execution. Art.777- The rights to the succession are transmitted from the moment of the death of the decedent. **It is clear that the moment of death is the determining point when the heirs acquire a definite right to the inheritance whether such right be pure or conditional. The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. **The heirs cannot compel the administrator of the property to deliver to them the property inherited. They cannot materially hold the property, even if subsequently such property would ultimately adjudicated to them upon the termination of administration proceedings-but to the heir passes not only the right of ownership , but also the right of possession, as of the moment of death of the predecessor. The possession of the hereditary property

SOLEMNITIES OF WILLS A) KINDS OF WILLS Art. 804 Every will must be in writing and executed in a language or dialect known to the testator. The requirements provided above is applicable to both attested and holographic will . Holographic will- must necessarily be written by the hand of the testator himself.

Ordinary or Attested Will- it is immaterial who performs the mechanical act of writing the will, so long as the testator signs it or has somebody sign his name in his presence. It may be written out or printed ,or partly written and partly printed, engraved or lithographed. Attestation Clause of an ordinary will- does not have to be written in a language or dialect known to the testator. It is not part of the testamentary disposition. The language used in the attestation clause does not have to be known to the witnesses, it should be translated to them / or interpreted. The more I read, the more I will become