Understanding testamentary succession

(Last of two parts)

Every disposition in favor of an unknown person shall be void, unless by some event or circumstance his identity becomes certain. But, a disposition in favor of a definite class or group of persons shall be valid.

Instituted heirs shall inherit in equal parts if their shares were not designated in the will.

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. Moreover, when the testator calls to the succession a person and his children, they are all deemed to have been instituted simultaneously and not successively.

If the testator instituted only one or several heirs and the institution would not cover the entire inheritance, legal succession shall take place with respect to the remainder of the estate.

But, if the testator intended for the instituted heirs to solely inherit the estate, or the whole free portion, as the case may be, and each of them has been instituted to an aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the whole free portion, each part shall be increased proportionally.

If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be reduced proportionately.

Preterition, or the omission of one, some or all of the compulsory heirs in the direct line, shall annul the institution of the heirs. Thus, the Supreme Court has consistently held that preterition exists when there is such total omission of the compulsory heir, such as when the testator fails to mention him in his will or does not give him anything in the hereditary property but without expressly disinheriting him.

The rule on preterition shall apply whether the compulsory heirs are living at the time of the execution of the will or born after the testator’s death. But, the devisees or legacies shall remain valid insofar as they are not inofficious. Meanwhile, the institution of heirs shall remain effective if the omitted compulsory heirs should die before the testator, without prejudice to the right of representation.

The share of a child or descendent 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 compulsory heirs’ shares.

A voluntary heir who dies before the testator does not transmit anything to his heirs. Moreover, a compulsory heir who dies before the testator, a person incapacitated to succeed, and one who renounces his inheritance, shall not be able to transmit any rights to their own heirs, except as expressly provided in the Civil Code.

Heirs may be conditionally instituted. Nevertheless, the testator cannot impose any charge, condition or substitution whatsoever upon the legitimes prescribed in the Civil Code. Should he do so, the same shall be considered as not imposed.

Impossible conditions and those contrary to law or good customs shall be considered as not imposed and shall in no manner prejudice the heir, even if the testator should provide otherwise.

An absolute condition not to contract a first or subsequent marriage shall be considered as not written, unless such condition was imposed upon the widower or widow by the deceased spouse, or by the latter’s ascendants or descendants. But, the right of usufruct, or an allowance or some personal prestation may be devised or bequeathed to any person for the time during which he shall remain unmarried or in widowhood.

Any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void.

Meanwhile, a purely potestative condition imposed upon an heir must be fulfilled by him as soon as he learns of the testator’s death. This rule shall not apply when the condition, already complied with, cannot be fulfilled again.

If the disposition is subject to a negative potestative condition, which consists in not doing or not giving something, he shall comply by giving a security that he will not do or give that which has been prohibited by the testator, and that in case of contravention he will return whatever he may have received, together with its fruits and interests.