SESSION 10: Elements of Succesion

Index:

Death: Time and place

Subjects: Exceptions
Onject: Collation (Donations)

1. DEATH

Remember that legal capacity is the capacity to act.

Death is the legal fact that initiates the succession (cf. viventis non datur haereditas).
 THE DEATH OPENS SUCCESSIONS.  THE SUCCESSOR IS CALLED TO INHERIT.

- It is written in the civil code:

E.g: Article 657 SSC et seq The rights to a person’s succession are transferred from
the time of his death.

- Forms of declaring death:

- Proof of death: relevant entry in the civil registry.
- A declaration of death by the judge is equivalent to actual death ( medical
certificate).
- Presumption of death if there is convincing evidence that the person is dead.
Art. 193 SCC et seq
- Absence: missing people. Legal status Art. 181 SCC et seq

a. Declaration & Presumption of death:

In some circumstance we may not know if someone is alive.

For example, if there is an airplane crash in the middle of the ocean, people go there to
look for them but nobody knows if they died. Everyone assumed they were death. If
we assume them to be death because there is an obvious presumption, there is no
way anyone would be alive in those circumstances  we could do a declaration of
death. We could ask the court do declare someone was death. From there, we start
moving on with his inheritance.
 But, to declare death, the court needs clear evidence of very probable death

If for example 3 years later he comes, he appears, he was not dead  he is entitled to
get everything back  right to recover. But imagine that his heirs spent someo fhte
money and is impossible to give or dispose him with all the inheritance.  there are
limits to his right to recover, the heirs must dispose as much as possible for him to
recover as much as possible.
 b. Declaration of absence:

This can also be asked, declaration of someone missing  someone will be appointed
as estate (inheritance) representative.

2. SUBJECTS

The time of death is important because it opens succession, it determines and limits
the subjects  as it stablished who will be the successors. From that moment on,
things will start happening.

The successor has legal capacity ( legal personality ) to inherit: to accept o renounce.
 Legal capacity is needed to succeed.

- Art. 763 SCC et seq

- Art.744 SCC et seq ( legal capacity to inherit)

NOTE: In the event of declaration of death with no corpse : the heirs may shall not
dispose of the inheritance pursuant to gift ( titulo gratuitous) until five years after the
declaration of death. Until the lapse of this same period, no legacies, if any, shall be
handed over, and the legatees shall not be entitled

Exceptions to the general rule:

1. Nasciturus : An unborn child who is a prosper of life.

Example: a couple is pregnant, due in 3 months. The husband dies  if we assume the
relevant rule, where the only successors are the only ones alive, the unborn child
would have nothing, which is unfair.  Fictional legal status is created: a good
prospect that the child will be born, recognising its legal personality for everything that
is favourable to him (Even if not born yet). The child must be considered, he has rights.
Inheritance must be put in place until he is born.

 So, If subsequently born alive, is considered as already in existence whenever it is to

its own advantage.

Civil Code:
- art. 29 SCC . Fictious legal status.
- Also, Art. 959 SCC et seq

2. Posthumously conceived children: they are concieved and born after the death
of the father.
Example: a family decides they want a second kind. When they are about to start
trying, they discover he has cancer and to proceed with the treatment he banks sperm.
He dies, and then she uses the bank to have another child once he dead. The child was
not alive either a project of live because was not conceived while he was alive.
 In this cases, the legal order is still catching up, a fictitious legal status is
recognised, for the child to be entitled to inheritance.

 So, a fictious legal status is recognised to not conceived when there is a good
prospect of life for them.
- In Spain there is some form of regulation on this, but not every countries have
it.

3. Substitution Fideicomiso:
It is similar to the trust. It can be used by the testator to leave the inheritance to
unknown heirs, people that have not been born jet are called the unknown. The
testator says that the final third of the inheritance will be equally divided among their
grandchildren in ten years. If now I have 2 and in 10 I have 7, it will equally be divided
to all of them. I am living my estate to all my future grandchildren equally.

- Civil law. E.g. Art.781 SCC. Mortis causa. WILL.

Elements:
1. Final Heir ( beneficiary ) : born or unborn ( also no conceived )
2. Fiduciary Heir ( heir ad tempus)
3. Ius delatione. E.G. Art. 784 SCC.
4. Limits. 2nd degree descendant direct line.

4. Trust. Common Law

SUBSTITUTION FIDECOMISO EXAMPLE:

WHEN THE HEIR FAILS TO INHERIT

When the heirs fail to inherit

Types of heirs: Legal heirs appointed by the law, deforce heirs are entitled to a share of
the inheritance, the appointed heirs are appointed by the testator.
Sometimes, they fail to inherit for some reason.
- If the heir renounces, he has exercised the ‘ius delatione’.
From all those situations in the table above, we will focus on the situation where the
heir dies before exercising the ‘ius delatione’ and where the heir predeceases, in other
words, when the heir dies before the testator.

TRANSMISSION EXAMPLE:
Transmission example: Testate & Intestate – NO SUBSTITUION CLAUSE.
THE HEIR of the PRIMARY DECEASED DIES BEFORE EXERCISING HIS IUS DELATIONE

- X: the dead guy: primary diseases first causer. 100 units inheritance.
- Children a, b: in different colours and then their descendants with numbers.
- Concept of transmission: we talked about the other day regarding ius delatione.

A and b are called heads of inheritance. Imagine b accepts his 50 units, as he gets it, his
children get nothing. A dies before exercising the ius delatione he accepted. Yhis ius
delatione is already within his state. The law says there is a transfer from A to its
descendant, a transfer of the ius delatione. A becomes a transferor of the 50 units, not
of more than he had. The children will receive 50 as transferees as a group. We do not
have 3 heads, we still have 2 heads but one has transferred it. Then, 1 and 2 will
receive 25 each. Moreover, A has a personal inheritance of 200, if they accepts, 1 and
2 will receive 200 + 25 each.

 Limits in this transfer: 1 and 2 cannot renounce to 1’s 200 and accept x because is
already within A, it has been transferred. They can accept a and renounce X.

 If the heir dies before the testator, they usually have said who will inherit instead. If
not, we apply transmission.

Representation example: Legal heir, forced heir and /or no substitution clause
Testate & intestate

A dies before X and therefore did not receive ius delatione yet. Then A’s descendants
will be entitled to represent their father A in the inheritance of X. They are
representing their father in the inheritance of the grandfather. For that, they need to
be legal heirs or forced heirs.
 Difference with transmission: as 1 and 2 are descendants of A and A is a legal heir, 1
and 2 are entitled to recieve A’s heir but directly receive it from X and become heirs as
a group of the inheritance of X directly. They also have the ius delatione to accept a’s
inheritance.
- They are subject to two different inheritance. While in transmission 1 and 2
were dealing with an inheritance that was double because X inheritance was
included in A, in this case they are free to accept or renounce any of the
inheritance, because they are inheriting A and X directly.
- They have 2 different ius delatione in the second case.

Right to accrete:

If there is no substitution clause there is a right to accrete. A has predeceases but there
is no representation because there are no descendants. B renounces to the
inheritance, and then inheritance for A and C increases. At the end, in this scenario cC
receives all of it because S has no representation and there is no substitution clause, or
someone had died before the testator.
For all of them to have to accrete clause there must not be substitution clause,
transmission…
 there are notes about this and in the next class we will do case studies.

Object: collation:

In civil law systems are there are legal force shares and some limitations of disposal of
assets gratuitously. You cannot donate more than you can freely dispose mortis causa.
That is the existing limitation.
Situation where testator has made inter vivos donation: we have X, and A and B need
to be force heirs for this situation to apply. The idea is that one the testator or decease
dies, to quantify the inheritance you have to add the value of the donations made
during life. So the inheritance at death is 5 units, but he donated 10 units to a, so the
donation will be added to the inheritance value.

Legislation on the Spanish Civil Code:

- Estate + donations intervivos : Art 636 CC, Article 636 nobody may give or
receive pursuant to gift more than he may give or receive under a last will and
testament. A gift shall be deemed ineffective to the extent that it exceeds this
measure.
- COLLATION (CIVIL LAW)- concept that AIMS TO PROTECT force shares

- INTESTATE AND TESTATE.Art.1035 -1042 SCC et seq: The forced heir who
attends, with others who are also, to a succession, must bring to the hereditary
estate the goods or values that he would have received from the cause of the
inheritance, in his lifetime, by dowry, donation or other lucrative title, to
compute it in the regulation of the legitimate ones ( force share) and in the
partition account.
 - Elements :
1. Only in cases where there are forced heirs
2. When the testator or causer has made a donation intervivos for the benefit
of a force heir.
- Exceptions Art. 1035 SCC et seq

Example collation (1):

A and b are forced heirs. To stablish the inheritance inventory, we must add the
donation value. They are entitled to 10 units, 5 each. The testator gave the free
disposal of 5. A received the inheritance in advance and the free disposal share.

Example collation (2):

Same situation with different numbers and there is free disposal of 5 units, legitima of
10 units equally distributed mong A and B. B is entitled to receive 5 but they are not in
inheritance anymore. There are no assets or money to pay him. A has received in
advanced for that it should. B has a right against A to receive the units that he is
missing.
Moreover, B has predeceased X, so their descendants are entitled to receive
inheritance in representation, receiving 1.5 each.
NOTES ON SUBJETC OF SUCCESSION: Substitutions, the right to increase, the right to
transfer, representation, the right to increase.

When an heir or legatee fails to acquire, for whatever reason, a series of legal
mechanisms are put into operation.
1. SUBSTITUTION
Substitution occurs only in testate succession by the express will of the testator and
refers to both heirs and legatees. The testator appoints a substitute (or several), for
three possible cases:
- The heir predeceased him.
- The heir is unable to succeed him.
- the heir repudiates his inheritance.
If nothing is indicated in the will, the substitution acts in all three cases.
The most frequent case is the father who names his children as heirs in equal parts,
and substitutes each of them by their respective descendants, for the three cases, or
for two, eliminating the repudiation.

2. RIGHT OF TRANSMISSION
This is the case where the heir B dies before accepting or repudiating the inheritance
from A. Unlike substitution, it applies in both the tested and the intestate succession.
The heir B who dies is the transferor heir, and the heir who acquires he inheritance C
is called the transferee heir. The transferee C receives the inheritance of the first
deceased A which is included in the inheritance of the transferor B. He can choose
among these options:
- Accept the inheritance of the transferor B, and also accept the inheritance of the first
causer A.
- Accept the inheritance of the transferor B and repudiate the inheritance of the first
causer A
- Repudiate both inheritances.

3. RIGHT OF REPRESENTATION IN TESTATED SUCCESSION

The institution deals with the case where the testator A has not taken the precaution
to substitute.
The heirs X Y Z of the appointed heir B will represent him as a group. The
representation refers to everything that the heir would receive. It does not apply in
case of repudiation.

4. RIGHT TO ACCRETE
This is an increase received by the heir A, testamentary or intestate, when the
inheritance is not acquired by the co-heir B who has been called jointly with him.
- It occurs both in the tested succession and ab intestato.
- It is a subsidiary institution; it does not apply if a substitution, the right of
transmission or the right of representation comes into play. In the case of the testate
succession, it is the last resource before having to open the intestate succession
- It is applicable to heirs and to legatees
- The reason for not inheriting is B has predeceased A, repudiation, or inability to
succeed.
- It is required that the one who has the right to increase C has been appointed jointly
with the one who does not inherit B. There is an increase, for example, in the case of
two heirs appointed in equal parts A and B.
It is not a new call for succession; the heir C cannot accept the portion due to him in
his own right and repudiate the portion corresponding to the right to increase.

5. SUCCESSION ABINTESTATO
The right to increase, and the right to representation in the intestate succession.
In intestate succession, it is a principle that the nearest relative excludes the most
remote degree. An exception in case of repudiation. If the inheritance is repudiated
then right to increase applies, but with the following limitation: It occurs in the
descending straight line, without limitation, but in no case in the ascending line
Typical cases of application of the right of representation are: A person dies without a
will, and one of his children A, an intestate heir, has predeceased having descendants.

6. COLATION
"The forced heir who concurs with others force heirs to a succession, must bring to the
estate the value that he received from the deceased in life by donation, to compute it
in the regulation of the force shares (legitimate) and in the account of the partition.
Requirements for the collation
a) Force heirs concur
b) One of them has received a donation during the life of the deceased.
With respect to the life insurance in favor of an heir, it is considered as an indirect
donation but only on the amount of instalments paid for the insurance not the
indemnity itself.