What is “Institution of Heir”?
It is an act by virtue of which a testator designates in his will the person or persons who are to succeed him in his property and transmissible rights and obligations.
Are the rules of institution of heirs limited only to heirs? No. The rules apply as well to institution of devisees and legatees.
A will does not contain an institution of an heir. Is the will valid nonetheless? Yes.
A will contains institution of heir but does not dispose of the entire estate. Is the will valid nonetheless?
Yes.
A will contains institution of heir but is not accepted by the instituted heir. Is the will valid nonetheless?
Yes.
A will contains institution of heir but the instituted heirs are incapacitated to succeed. Is the will valid nonetheless?
Yes.
How much can be disposed of by will?
If the testator leaves no compulsory heirs, the testator can dispose of the entire estate.
If the testator leaves compulsory heirs, the testator can only dispose of the disposable portion, referring to the net hereditary estate minus the legitimes.
The amount of the legitimes depends on the kinds and number of compulsory heirs. Various combinations are possible (discussed infra).
What is the effect if only a portion of the disposable portion is given in a will, instead of the whole?
Mixed succession.
A stated in his will the following: “I institute B, my “hippo penguin cute”, as an heir to the entire free portion of my estate.” Is the institution valid?
It depends. The use of name and surname in the designation is not mandatory, but merely directory. What is required, however, is that the identity of the designated successor be sufficiently established. Such establishment is usually done by the statement of both the name and surname – there are however, other ways. The validity of the institution therefore hinges on the determination of the identity of the designated successor.
In A’s case, although only the first name of the testamentary heir is mentioned (B), the qualifier “hippo penguin cute”, which is publicly known as his pet name for his girlfriend B, could very well establish sufficiently that his girlfriend Bianca is indeed instituted. However, if it so happens that David has another girlfriend on the side, whom he also calls “hippo penguin cute” and such is also a known fact, then the institution is clearly not sufficiently established and ambiguity exists. Now, if there is any ambiguity in the designation, the institution is not automatically invalidated. The ambiguity should be resolved in accordance with the rules of construction of wills, particularly Article 789, namely, that extrinsic evidence may be introduced, excluding oral declarations as to the intention of the testator. It despite the introduction of such evidence aliunde it is still not possible to resolve the ambiguity, the testator’s intent becomes indeterminable and, therefore, intestacy as to that portion will result. The net effect of indeterminability; therefore, is the invalidation of the institution.
What is an “unknown person”?
This term refers to a successor whose identity cannot be determined because the designation in the will is so unclear or so ambiguous as to be incapable of resolution.
A instituted B as an heir to the entire free portion of her estate. A does not know B personally. An opposition is made on the ground that “every disposition in favor of an unknown person shall be void”. Is the opposition correct?
No. The term “unknown person” does not refer to one with whom the testator is not personally acquainted. The testator may institute somebody who is a perfect stranger to him, provided the identity is clear.
How should heirs instituted without designation of shares inherit?
They should inherit in equal parts. The general presumption in cases of collective designation is equality. If the testator intends an unequal apportionment, he should so specify.
Does the presumption of equality apply in all cases of succession?
The rule only applies in testamentary succession. It will not apply to an heir who is both a compulsory and a testamentary heir, since in such case, the heir will get his legitime and his testamentary portion.
*An institution is made in the following manner: “I institute to one-fourth of my estate A, B, C and D, of which portion A is to get one-third, and B is to get one-fourth.” Does the presumption of equality of shares apply to C and D whose shares are unspecified?
Yes, that seems to be the case. There seems to be no other reasonable way in which the shares of C and D are to be determined. Further, although no explicitly covering such cases, the rule states that “heirs instituted without designation of shares shall inherit in equal parts”. There is no distinction made that for such presumption to apply, that ALL heir must not have been specified shares.
An institution is made in the following manner: “I designate as my heirs A and B, and the children of C”. How shall the children inherit assuming that there is more than one child? When the testator institutes some heirs individually (in this case, A and B) and others collectively (in this case, the children), those collectively designated shall be considered as individually instituted unless it clearly appears that the intention of the testator was otherwise. There is therefore a presumption that heirs collectively referred to are designated per capita along with those separately designated. Clearly, if the testator intends a block designation, he should so specify.
An institution is made in the following manner: “I designate as my heirs my four brothers John, Mark, Matthew and Ringo.” Assuming Ringo is a half blood brother of the testator, how is he to inherit (in what share)?
If the testator should institute his brothers and sisters, and he has some of full blood and others of half blood, the inheritance shall be distributed equally unless a different intention appears.
Does the rule supra as to full or half blood brothers or sisters apply to intestate succession?
No. In intestacy, there is a 2:1 proportion between full and half blood brothers and sisters (without prejudice to the rule prohibiting succession ab intestato between legitimate and illegitimate siblings.
*Does the rule supra as to full or half blood brothers and sisters apply similarly to illegitimate brothers and sisters, in cases where the testator is of legitimate status and vice versa?
Yes, it seems so – because the law seems to make no distinction.
An institution is made in the following manner: “I designate as my heirs A and her three children”. How shall the A and his children inherit?
When the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively.
What is the effect of the statement of a false cause for the institution of an heir? Is the effect the same in all cases?
Such false cause shall be considered as not written.
However, the falsity of the stated cause for institution will set aside such institution, if the following factors are present: (1) The cause for the institution of heirs must be stated in the will; (2) The cause must be shown to be false; and, (3) It must appear from the face of the will that the testator would not have made such institution if he had known the falsity of the cause. (Austria vs. Reyes, 31 SCRA 754 [1970])
Julia, instituted as her heirs Carol, Mika, Micah, Myta, Grace and Ina to her entire estate, Julia designated a definite portion for each in the following proportions: Carol – 1/9; Mika – 1/6; Micah - 1/18; Myta – 1/18, Grace – 1/2; Ina – 1/12. At the time of her death, Julia’s
estate is valued at Php18,000,000.00. Is there something the matter with such institution made by Julia? If any, what must be done?
The total of all the portions is less than the whole estate. Therefore, a proportionate increase is necessary. The difference cannot pass by intestacy because the testator’s intention is clear to give the instituted heirs the entire amount.
Do the computations in accordance with the resolution to Julia’s case.
The total of the specified portions is only 35/36. And therefore, as mentioned supra, a proportionate increase should be made.
Per the proportions specified in the will: Carol = Php2,000,000.00 Mika = Php3,000,000.00 Micah = Php1,000,000.00 Myta = Php1,000,000.00 Grace = Php9,000,000.00 Ina = Php1,500,000.00
The total therefore being Php17,500,000.00. The algebraic formula to be used is:
A/T = x/E, where:
A is the share of a particular heir
T is the sum of the shares of all the heirs E is the total value of the estate
x is the increased share of the particular heir
Therefore, in Carol’s case, evaluating using the value of Php2,000,000.00, her increased share should be approximately Php2,057,142.86.
Following the same for each of the other heirs, the increased shares of each should be:
Heir Sharing (in Php)
Carol 2,057,142.86 Mika 3,085,714.29 Micah 1,028,571.43 Myta 1,028,571.43 Grace 9,257,142.86 Ina 1,542,857.14 Total 18,000,000.0143 Note:
1. The extra decimals in the solution are due to rounding off
2. The rule applies equally when the testator institutes not to the entire estate but merely to the entire disposable portion.
3. The same procedure is applied in case the total of the portions exceeds the whole estate (or the whole disposable portion), but computing this time for a proportionate reduction.
Preterition means total omission from the inheritance. The heir in question therefore must have received nothing from the testator by way of (1) testamentary succession, (2) legacy or devise (as seen in Aznar vs. Duncan, 17 SCRA 590, 17 SCRA 590 [1966]), (3) donation inter vivos or (4) intestacy.
When there is a compulsory heir in the direct line instituted in the will and the testamentary disposition given to such heir is less than the heir’s legitime, is there preterition?
No. As ruled in Reyes vs. Barretto-Datu (19 SCRA 85 [1967]), there is no preterition in this case precisely because there was no total omission, inasmuch as the heir received something from the inheritance. Therefore, the heir’s remedy is not found in Article 854 (the article on preterition), but rather in Article 906 and 907 on the completion of legitime (discussed infra).
When a compulsory heir is omitted from the will but is given a legacy or devise, is there preterition?
No. As seen in the case of Aznar vs. Duncan (17 SCRA 590 [1966]), there was no preterition precisely because the testator did not entirely omit the oppositor-appellee in the case, but left her a legacy of Php3600.00. When a legacy or devise happens to be less than the recipient’s legitime, the remedy is only for the completion of the legitime under Articles 906 and 907.
When a compulsory heir is omitted from the will but had received a donation inter vivos from the testator, is there preterition?
No. The donation inter vivos is treated as an advance on the legitime under Articles 906, 909, 910 and 1062 (all discussed supra). Such view is supported by Castan, Manresa, Scaevola and Valverde. It is contradicted however by a decision of the Supreme Court of Spain of 17 June 1908. When a compulsory heir is not mentioned in the will nor was he made a recipient of a donation inter vivos from the testator, but not all of the estate was disposed of by the will, is there preterition?
No. The omitted heir in this instance would receive something by intestacy, from the portion not disposed of by the will (the vacant portion). The right of the heir, should the vacant portion be less than his legitime, will simply be to demand completion of his legitime, under Articles 906 and 907. Who are included within the terms of the article on preterition?
A compulsory heir in the direct line, whether living at the time of the execution of the will or born after the death of the testator.
What is the flaw in the working of the Article?
The phrase “whether living at the time of the execution of the will or born after the death of the testator” does not, by its terms, include those compulsory heirs in the direct line born after the
execution of the will but before the testator’s death. Such children are, without doubt, to be
included within the purview of the protection of the article. The gap is merely the result of careless drafting.
What is covered by the term “compulsory heirs in the direct line”?
This covers children or descendants, and in proper cases, parents or ascendants. A statutory is also found in Article 964, par. 2 – “a direct line is that constituted by the series of degrees among ascendants and descendants”.
Does the surviving spouse fall within the purview of the article on preterition?
No. This is so, because, although a compulsory heir, is not in the direct line. (Balanay vs. Martinez, 64 SCRA 452 [1975])
Are illegitimate descendants or ascendants within the coverage of “compulsory heirs in the direct line”?
According to Manresa, which seems to be the better view (although opposed by Scaevola), yes – because the law does not distinguish.
What is the basis for the second paragraph of the article on preterition?
The second paragraph of Article 854 states that “if the omitted compulsory heirs should die before the testator, the institution shall be effectual, without prejudice to the right of representation.” Should the preterited heir predecease (or be unworthy to succeed) the testator, obviously the question of preterition of that heir becomes moot. However, should there be a descendant of that heir who is himself preterited, then the effects of preterition will arise.
Are adopted children under the ambit of the term “compulsory heir in the direct line”? Yes. This question has been answered in the affirmative by Acain vs. IAC (155 SCRA 100 [1987]). According to Acain, since an adopted child is given by law the same rights as a legitimate child, vis-à-vis the adopter, then the adopted child can, in proper cases, invoke Article 854 in the same manner that a legitime child can.
What is the effect of preterition?
Preterition annuls the institution of heir but maintains the validity of legacies and devises to the extent that these latter do not impair the legitimes.
What is meant by “annulment of the institution of heir”?
Such annulment throws open to intestate succession the entire inheritance. The only provisions which do not result in intestacy are the legacies and devises made in the will for they should stand valid and respected, except insofar as the legitimes are concerned (Nuguid vs. Nuguid, 17 SCRA 449 [1966]). Thus, if the will contains only institutions of heirs and there is preterition, total intestacy will result.
Distinguish Preterition from Ineffective Disinheritance.
Preterition is (total) omission from the inheritance, without the heir being expressly disinherited. The implied basis of the rule on preterition is inadvertent omission by the testator. Thus, if the testator explicitly disinherits the heir, the article will not apply. Should the disinheritance be ineffective, for absence of one or other of the requisites for a valid disinheritance, the heir is simply entitled to demand his rightful share.
Article 855 states that “The share of a child or descendant omitted in a will must first be taken from the part of the estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be taken proportionally from the shares of the other compulsory heirs.” What are the errors in this article?
It is superfluous and inaccurate.
It is superfluous in the sense that it deals not with preterition but with completion of legitimes which is properly and sufficiently provided for in Articles 906, 907, 909, 910 and 911.
It is inaccurate in two levels. First, the coverage should extend not only to children and descendants, but to all compulsory heirs. Second, the proportionate reductions should be borne not by the compulsory heirs as such but by the testamentary heirs, including the devisees and legatees. To make the compulsory heirs bear the reduction would mean reducing their own legitimes – a patent absurdity as it would be tantamount to solving one problem by creating another.
Article 856 states that “A voluntary heir who dies before the testator transmits nothing to his heirs. A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for in this Code.” What are the errors in this article? It is inaccurate and misleading, because it suggests that there are exceptions to the rule that an heir – in case of predecease, incapacity or renunciation – transmits nothing to his own heirs. However, this rule of non-transmission is absolute – there is no exception to it. Representation cannot be considered an exception because through such, the person represented does not transmit anything to his heirs. Represenation is rather a form of subrogation. (Representation discussed infra)
Further, the article says too much (as it speaks of compulsory succession when it should deal only with testamentary succession) and too little (because if it wished to cover the entire gamut of rules on this point, it fails to mention intestate succession).
The better statement of the rule should be that an heir – whether compulsory, voluntary or legal – transmits nothing to his heirs in case of predecease, incapacity, renunciation or disinheritance. However, in case of predecease or incapacity of compulsory or legal heirs, as well as disinheritance of compulsory heirs, the rules on representation shall apply.