Calo, James Bernard G.
System of Legitime : undue Infringement and restriction on the will and property rights of the testator / James Bernard G. Calo - Cebu City : University of Cebu, 2017. - iv, 96 (various) leaves : illustrations ;
Thesis (Degree of Juris Doctor)-- University of Cebu- Banilad, 2017.
Includes references (leaves 91-94)
Summary: Every testator has the right to dispose of his property through a will. However, this right in not absolute as the state may impose limitations to the right of the testator to dispose of his property. And one of the limitations to such right is the law on legitime under the New Civil Code of the Philippines. Note, however, that the 1987 Philippine Constitution prohibits any deprivation of property without due process of law. The study, therefore, seeks to determine if the system of legitime of the New Civil Code of the Philippines,as applied to testamentary succession violates the right of the testator to dispose of his properties by examining the purpose of the system of legitime, if such purpose as applied to testamentary succession is achieved, if such law follows the due process as provided under the 1987 Philippine Constitution, and if there is a need to enact a law modifying the existing law on legitime in the Philippines. The study used the Human Rights Based Approach, to determine if the state performed its duty to protect the property right of an owner-testator and to ensure that the deprivation imposed by the system of legitime followed due process. In doing so, the study employed the qualitative method by document analysis which consist of statues, relevant cases and books renowned authors who are experts in the field of civil law. To form the results, the researcher utilized the functionalism theory to weigh the different interests of the parties involved,who are: the testator, state and compulsory heirs.And come up with a law that suits not only the welfare of the testator but also that of the state and compulsory heirs.From the findings, reserving a portion of the decedent's estate. However, the purpose of the system of legitime has been proven to be questionable. The shares designated for each compulsory heir are imposed arbitrarily and the sharing has no basis in law resulting in complications and confusion in the manner of dividing the estate and sometimes results to inequality. Hence, the study concludes that there is a need to enact a law modifying the existing law on legitime under testamentary succession to address the different interests of the testators, state and compulsory heirs. In the proposed amendment,the compulsory heirs are retained but the testator is given the wide discretion to decide on how much is the share of each heirs. Provided, however, that such discretion of the testator is subject to approval of the probate court, to determine whether such share of the heirs s really in accordance with their actual needs. Through these changes, the interests of the testator, the state and as well as the heirs will be harmonized.
English
System of Legitime : undue Infringement and restriction on the will and property rights of the testator / James Bernard G. Calo - Cebu City : University of Cebu, 2017. - iv, 96 (various) leaves : illustrations ;
Thesis (Degree of Juris Doctor)-- University of Cebu- Banilad, 2017.
Includes references (leaves 91-94)
Summary: Every testator has the right to dispose of his property through a will. However, this right in not absolute as the state may impose limitations to the right of the testator to dispose of his property. And one of the limitations to such right is the law on legitime under the New Civil Code of the Philippines. Note, however, that the 1987 Philippine Constitution prohibits any deprivation of property without due process of law. The study, therefore, seeks to determine if the system of legitime of the New Civil Code of the Philippines,as applied to testamentary succession violates the right of the testator to dispose of his properties by examining the purpose of the system of legitime, if such purpose as applied to testamentary succession is achieved, if such law follows the due process as provided under the 1987 Philippine Constitution, and if there is a need to enact a law modifying the existing law on legitime in the Philippines. The study used the Human Rights Based Approach, to determine if the state performed its duty to protect the property right of an owner-testator and to ensure that the deprivation imposed by the system of legitime followed due process. In doing so, the study employed the qualitative method by document analysis which consist of statues, relevant cases and books renowned authors who are experts in the field of civil law. To form the results, the researcher utilized the functionalism theory to weigh the different interests of the parties involved,who are: the testator, state and compulsory heirs.And come up with a law that suits not only the welfare of the testator but also that of the state and compulsory heirs.From the findings, reserving a portion of the decedent's estate. However, the purpose of the system of legitime has been proven to be questionable. The shares designated for each compulsory heir are imposed arbitrarily and the sharing has no basis in law resulting in complications and confusion in the manner of dividing the estate and sometimes results to inequality. Hence, the study concludes that there is a need to enact a law modifying the existing law on legitime under testamentary succession to address the different interests of the testators, state and compulsory heirs. In the proposed amendment,the compulsory heirs are retained but the testator is given the wide discretion to decide on how much is the share of each heirs. Provided, however, that such discretion of the testator is subject to approval of the probate court, to determine whether such share of the heirs s really in accordance with their actual needs. Through these changes, the interests of the testator, the state and as well as the heirs will be harmonized.
English