Understanding the Right of Representation in Intestate Succession
In intestate succession, it is clear that the closest relative typically excludes the more distant. However, there is an important exception to this rule, found in the so-called Right of Representation.
By virtue of this right, if a person who would have inherited an intestate estate dies before the deceased, their descendants are granted the right to inherit in their place. This succession occurs by reference to the position and degree of the deceased ancestor.
Defining the Right of Representation
Consequently, the Right of Representation is defined as the legal right, granted directly by law, for the children of a predeceased heir to step into their parent’s position in the intestate succession of the deceased. They inherit the same share and under the same conditions that their parent would have received had they lived.
Critique of Article 924 on Representation
Article 924 states: “The so-called right of representation allows the relatives of a person to succeed to all rights that they would have inherited if they had lived.”
This article, however, contains three key inaccuracies:
- First: It speaks of “relatives,” but only the descendants of the predeceased person succeed by right of representation, not all relatives.
- Second: It incorrectly implies succession to the “relative” who has predeceased. Instead, the succession is directly to the deceased, by operation of law.
- Third: It is not a true representation (as there is no legal action on behalf of another). Rather, the ‘pseudo-agent’ (the descendant) succeeds in their own right, occupying the position in the succession that the ‘pseudo-represented’ (the predeceased ancestor) would have held.
Theories on the Legal Nature of Representation
The legal nature of this institution is supported by three main theories:
- Theory of Fiction: The law considers the descendant as if they were the predeceased ancestor.
- Substitution Ex Lege: The law directly substitutes the descendants into the position that the predeceased person would have occupied.
- Theory of Conversion: The initial inheritance ‘vocation’ (right to inherit) that failed to materialize for the predeceased person is converted into a new vocation for their descendants.
Requirements for the Right of Representation
A fundamental requirement for the right of representation is that the predeceased person did not inherit from the deceased due to circumstances beyond their control (e.g., death).
- The right of representation always applies in the direct descending line, but never in the ascending line.
- In the collateral line, it only applies to the children of siblings (nieces and nephews).
Application in Direct and Collateral Lines
As observed, the right of representation always applies in the direct descending line.
In the collateral line, it applies to the deceased’s nephews and nieces (children of siblings), provided they concur with other heirs. If a nephew or niece is the sole heir in their line, they inherit in their own right, not by representation.
Effects of the Right of Representation
The effects of the Right of Representation are as follows:
- Direct Succession: The descendant inherits directly from the deceased, not from the predeceased person. They step into the position that the predeceased person would have occupied in the succession. Therefore, the descendant must meet the requirements for capacity, and not be subject to any grounds for indignity or prohibitions to succeed the deceased.
- Inheritance Per Stirpes: Inheritance occurs ‘by lines’ (per stirpes). This means that those who succeed by right of representation jointly acquire the portion that would have corresponded to their predeceased ancestor. Thus, while inheritance per capita (per head) is the general rule, the right of representation dictates division per stirpes (by line), where the share of the predeceased ancestor is divided among their descendants.