What is fideicommissary substitution?
Also known as indirect substitution, it is a substitution by virtue of which the fiduciary or first heir instituted is entrusted with the obligation to preserve and transmit to a second heir the whole or part of the inheritance.
Note: For its validity and effectivity, such substitution does not go beyond one degree from the heir originally substituted and provided further, that the fiduciary or first heir and the second heir are living at the time of death of the testator.
What are the conditions for a valid fideicommissary substitution?
1. That the institution does not go beyond one degree from the heir originally instituted;
2. That the substitution be expressly made;
3. That both the fiduciary and beneficiary be living at the time of the testator’s death;
4. That it should be imposed on the free portion and not on the legitime.
What are the elements/requisites of fideicommissary substitution?
1. There must be a first heir or fiduciary;
2. An absolute obligation is imposed upon the fiduciary to preserve and to transmit to a second heir the property at a given time;
3. There is a second heir who must be one degree from the first heir;
4. The first and second heir must both be living and qualified at the time of the death of the testator.
What is the effect if the fideicommissary predeceases the fiduciary?
If the fideicommissary predeceases the fiduciary, but survives the testator, his rights pass to his own heirs.
What is the effect of the nullity of the fideicommissary substitution?
The nullity of the fideicommissary substitution does not prejudice the validity of the institution of the heirs first designated; the fideicommissary clause shall simply be considered as not written.