Monday, July 5, 2010


By Beverly Caboteja
I’m looking through my notes at home , and I remember one subject, which a lot of people say , one of the most difficult yet boring subjects. It is SUCCESSION. I had no clear idea though of what kind of animal is this (not until I have studied it) because at one point, I know I have no property or rights to transfer, neither do I have the inheritance to succeed. But nobody knows what lies ahead. Maybe in the future, God willing, I can use this.
One author says that , Civil Law has and always will be one of the stabilizing factors in our daily lives. Part of this is succession. When we mention the word “succession” , some people get excited, some get nervous because basically we talk about inheritance and death, respectively. Of course, up to a certain degree we need to know about succession because the only way we can learn is through discussing it. Seldom do people talk about it because they say this is only for the rich and famous. True or not, the need still arises.
Art 777 of the Civil Code states that “ the rights to the succession are transmitted from the moment of the death of the decedent. At the moment of the decedent’s death , the heirs start to own the property , subject to the decedent’s liabilities. In fact, they may dispose of the same even while the property is under administration.”
In its generic or general sense, succession is defined as the transmission of rights and properties from one person to another. In this sense, succession may be intervivos (where transfer is effective during lifetime of the giver) or mortis causa (after his death).
Succession in its legal definition, is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value 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. 774, New Civil Code). In brief, someone gets something from another who has died.
It is true that death transfers the rights to the succession- but only if the following conditions are present, namely:
1. That indeed there has been a death (either actual or presumed)
The law is silent in determining as to when a person is deemed considered dead. Technically, a person is considered dead when all its sensory faculties, bodily activities, heart and brain systems cease to function. Yet, under the law death is not limited to natural or physical demise. It includes presumed death occasioned by prolonged legal absence.
Legally, there are two (2) kinds of presumed death: the ordinary presumption caused by ordinary absence there being no danger or idea of death and an extraordinary presumption caused by an extraordinary or qualified absence. Here in the first presumption, if a person disappears, at the end of ten (10) years, he shall be presumed dead for the purpose of opening his succession (Art 390 of the Civl Code).
On the other hand, if he disappears after the age of 75, absence of five (5) years is enough in order that his succession may be opened. Note that death takes place on the last day of the period of absence required by law.
Moreover, under Art 391 of the Civil Code, there is extraordianary presumption because of great probability of death. The law says that the following shall be presumed dead for all purposes including the division of the estate among the heirs:
a. A person on board a vessel lost during a sea voyage or an aeroplane which is missing, who has not been heard for four years since the loss of the vessel or aeroplane;
b. A person in the armed forces who has taken part in war, and has been missing for four years;
c. A person who has been in danger of death under other circumstances and his existence has not been known for four years.
Under these conditions, it has been held that the person is presumed to have died at the time of the disappearance, that is at the time the calamity took place and not at the end of four years. In other words, at the end of four years, the presumption will arise that death had occurred four (4)years before.
Furthermore, in both absences, succession is only of provisional character because there is always a chance that the absentee may still be alive. As such, it may be rebutted or proved as to when death actually occurred.
The problem here is, what if the absentee appears or returns? Knowingly, if the absentee appears or without appearing his existence is proved, “he shall recover his property in the condition in which it may be found and the price of any property that may have been alienated or the property acquired therewith; but he cannot claim either fruits or rent. “
2. That the rights or properties are indeed transmissible or descendible
As mentioned, inheritance includes all the property , rights and obligations of a person which are not extinguished by his death. Some rights are extinguished by death, some are not. To name few of those rights which are extinguished by death (and which therefore are not part of the estate), these include: family rights, marital and parental authorrity, support, action for legal separation, right to hold public office or private office or job. These rights have no inheritability , hence not transmissible mortis causa.
Thus, rights and obligations are generally transmissible unless purely personal.
3. That the transferee is still alive (no predecease), willing (no repudiation) and is capacitated to inherit.
It is noteworthy that if the heir instituted is incapacitated, repudiates the inheritance, or predeceases the testator, said heir inherits NOTHING. The same conclusion is reached when although the heir is ready, willling and able- the right is not transmissible or descindible- as for instance the right to support.
While it is true that a person has the right to transfer his or her inheritance but this only takes place by virtue of his will (i.e testamentary succession )or by operation of law (i.e. legal or intestate). Still, the act of such person is moderated by the law so as not to defeat the real intent or purpose of the law. So long as all the requisties concur or all requirements are complied with, succession may transpire.
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