SUBSTITUTION OF HEIRS

DEFINITION OF SUBSTITUTION:

- It is the appointment of another heir
- so that he may enter into the inheritance in default of the heir originally instituted

CLASSES IF SUBSTITUTION:

1. Vulgar or Simple – the testator may designate one or more persons to substitute the heir or heirs instituted in case such heir or heirs should

a. die before him (PREDECEASE)

b. should not wish, (RENOUNCE) or

c. should be incapacitated to accept the inheritance (INCAPACITATED)

i. Brief or Compendious – two or more persons may be substituted for one; and one person for two or more heirs

ii. Reciprocal – if heirs instituted in unequal shares should be reciprocally substituted, the substitute shall acquire the share of the heir who dies, renounces, or incapacitated, unless it clearly appears that the intention of the testator was otherwise. If there are more than one substitute, they shall have the same share in the substitution as in the institution
2. Fideicommissary Substitution - if the testator institutes an heir with an obligation to deliver to another the property so inherited. The heir instituted to such condition is called the first heir or fiduciary heir, the one to receive the property is the fideicommissary or second heir

REQUISITES FOR A FIDEICOMMISSARY SUBSTITUTION:

1. A fiduciary or first heir instituted entrusted with the obligation to preserve and to transmit to a fideicommissary substitute or second heir the whole or part of the inheritance

2. Such substitution must not go beyond one degree from the heir originally instituted

3. The fiduciary or first heir and the second heir are living at the time of the death of the testator

4. The fideicommissary substitution must be expressly made

5. The fideicommissary substitution is imposed on the free portion of the estate and never on the legitime

DEFINITION OF LEGITIME:

- It is that part of the testator’s property which he cannot dispose of
- because the law has reserved it for certain heirs called compulsory heirs