CHAPTER I: OPENING OF THE SUCCESSION

DEFINITION
In inheritance law, it refers to the beginning of the transfer process, to know
when, where and who the beneficiaries will be, from which the following
aspects emerge:

TIME
It is very important to know the opening moment, since it will determine the
following:

Who are the successors and their compatibility and dignity to succeed.
What are the assets being transferred. (quote) “All the assets that the
deceased was the owner of until the day of his death, or more generally, all
the rights that he was the owner of, must be considered as existing on the
day of death.”
What is the applicable regulations: The law that governs succession is that
in force at the time of death.
The jurisdiction of the judge
From the moment of opening, the effects of the acceptance and
renunciation of the inheritance of legacies are retroactive, hereditary
undivision is born due to the co-ownership that arises between the heirs with
respect to the assets of the inheritance and contracts can be concluded on
the rights in a succession, Josserand maintains “The prohibition of
agreements on future inheritance ceases, since, from now on, the
succession is current” (p. 97)

SPACE
The place of opening for the purposes of procedurally establishing a single
jurisdiction.
EFFECT
The purpose of the succession process is to transmit the assets subject to
inheritance to those who must receive it.

It is pertinent to highlight that the opening of the succession should not be

confused with the acts that are carried out after the death of a person, such
as non-contentious procedures for opening closed wills or declaration of
heirs.

OPENING MOMENT
This situation is determined by the death of the deceased, as prescribed in
article 61, death puts an end to the person; Likewise, article 660 states that
hereditary transmission occurs from the moment of death.
The succession is opened by physical death or by presumed death, which
governs in cases of disappearance and absence, or death when the corpse
is not recognized.
We find the proof of death in the death certificate, in accordance with article
58 of Law No. 26497 (Organic Law of the National Registry of Identification
and Civil Status), unless its nullity is judicially declared. The regulations for
civil status records require that the place, time, day and year of death be
recorded in the certificate. If the registration is not timely, it will be necessary
to follow a judicial procedure for registration of the item, in accordance with
articles 826 et seq. of the Code of Civil Procedure, and if there is an error, a
procedure for rectification of the item must be followed, in accordance with
the same. CPC articles

CONMORIENCE
It is especially important to determine the exact moment of death of a
person, since this fact must be known ad-momentum and not-ad-dies; That
is, in relation to the instant itself and not to the day of death.
Regarding the death of several people that occurs as a result of the same
event, such as an accident, an earthquake, a shipwreck or a war, the
problem arises of determining the order in which the deaths occurred in
order to know if there were among the persons transmission of hereditary
rights. These people are doctrinally called morientes, putting the preposition
affixed with before the word Morientes. In the case of people with a
reciprocal hereditary vocation, the inheritance can be transmitted to one
person or another, depending on who died first.
Comparative legislation has responded to this concern through two theories:

3.1 THEORY OF PREMORIENCE

It points out that, in this case, due to factual circumstances, age and sex, it
must be presumed that some people died before others and that,
consequently, there would be succession transmission between them.
Roman law established that, if a son and his father and mother had died in
the same accident, it would be presumed that the son would have died first,
if he was prepubescent, and the last if he were pubescent (citation).

3.2 THEORY OF CONMORIENCE

This theory refers to the fact that it cannot be presumed that one person
died before another but, rather, that they all died at the same time.
Consequently, there cannot be a succession transfer between them. As
Rescigno maintains, the true meaning of this system is to contradict the
Napoleonic Code's tradition of presumptions based on age, sex, physical
resistance and to enforce it in cases of natural disasters. (p.19)

This theory is adopted by our civil code, in article 62, which states that “if it
cannot be proven which of two or more people died first, they are
considered dead at the same time and there will be no transmission of
hereditary rights between them.”

JURISPRUDENCE
The competent jurisdictional bodies have established that the triple homicide
occurred in a single criminal attack, on Friday, May 28, 2004, at
approximately 2:40 minutes. Although in the criminal process the homicides
have detailed the sequence of the attack on each of their victims, said
sequence does not prove a proven order of their death, which is why the
conmorence included in article 62 has not been distorted. of the Civil Code.

DISAPPEARANCE, ABSENCE AND PRESUMED DEATH

Although these institutions belong to Personal Law, they have an impact on
Inheritance Law.
The disappearance of a person occurs when they are not at their place of
residence and there is no news about their whereabouts. (article 47).
Absence occurs when the passage of time allows there to be uncertainty
about its existence. In these cases, the law determines procedures and
deadlines to protect the assets of missing persons, to determine the
possession of their assets by their heirs and to establish the moment in
which they can be considered dead. Presumed death entails succession
transmission once the deadlines established by law have elapsed, when or
in the event of death the body is not found or cannot be recognized.

ABSENCE REGIME IN THE CIVIL CODE OF 1984

Disappearance
Article 597 states that when a person is absent or has disappeared from his
or her home, and his or her whereabouts are unknown, interim guardianship
of his or her property will be provided, with the same being the responsibility
of the spouse not judicially separated, the parents, the descendants, to the
other ascendants, to the siblings or to the person designated by the family
council.
The provision adds that, in the absence of the persons mentioned above,
the person designated by the judge will exercise guardianship, and the
appointment will not proceed if the missing person has an agent with
sufficient powers registered in the public registry.
Absence
Article 50 states that it is appropriate to grant temporary possession to the
forced heirs at the time of issuing the judicial declaration of absence, which
is applicable after two years since the last news of the missing person was
received. Only if there are no forced heirs, the guardianship will continue.

This possession grants the beneficiaries all the rights and obligations
inherent to it, enjoying the fruits with the limitation of reserving an equal part
of the free disposal quota of the absentee. They cannot transfer or
encumber assets, except in cases of necessity or utility and prior judicial
authorization.
The judicial declaration of absence must be registered in the registry of
mandates and powers to extinguish those granted by the absentee.
presumed death
The declaration of presumed death is appropriate, without the absence
being essential, at the request of any interested party or the Public
Prosecutor's Office, when ten years have passed since the last news of the
missing person or five if the missing person is over eighty years of age;
when two years have passed if the disappearance occurred in
circumstances constituting danger of death, in which case the cause runs
from the cessation of the dangerous event; and when there is certainty of
death, without the body being found or recognized.

PASSIVE SITUATION OF ABSENCE

The law does not regulate the succession effects of the passive situation of
the absentee; presumably the following:
6.1 Disappearance
At this stage, because he is considered alive, he is subject to hereditary
rights.
6.2 Absence
Likewise, since his death has not been declared, he can receive hereditary
assets.
6.3 Presumed death
At this stage, since it is considered death, it is not subject to hereditary
rights. It will only be until the date indicated by the judicial resolution
declaring death.

Borda explains that “the establishment of the presumptive day of death only
produces effects in what concerns the rights acquired by the absentee prior
to the last news that was had of him; but from the moment of this it can no
longer acquire rights by donation, inheritance or legacy because for this it is
an essential condition that the beneficiary is alive at the time in which the
transfer is to take place, a condition that must be proven by the interested
party.

OPENING PLACE
It is equally important to locate the opening of the succession in space,
indicating the place where it must occur, so that a judge has exclusive
jurisdiction over matters related to the succession.

The concept has relevance in civil law and procedural law. Some legislation
understands it this way, enshrining a rule that expresses the place of
opening. Thus, as the Italian and Brazilian codes provide that the
succession opens at the time of death, in the place of the deceased's last
domicile.
Such a criterion is logical, since the place of death is irrelevant in
determining jurisdiction, since it may be the result of an accident.

Therefore, the general rule was that it had to be carried out in the place of
the deceased's last domicile. Only if it could not be known with certainty
could it be done in the place where he had his businesses or where most of
his assets were located.
Such a situation has been enshrined in article 663 of the Civil Code, which
establishes that “It is up to the judge of the place where the deceased had
his last domicile in the country to hear non-contentious procedures and trials
related to succession.” This rule refers us to article 19 of the Civil Procedure
Code, which states that in succession matters the judge of the place where
the deceased had his last domicile is competent, and that jurisdiction cannot
be extended.

JURISPRUDENCE
The place of opening of the succession determines the succession
jurisdiction, whose regime is constituted by rules of internal public order of
an imperative nature and non-derogable by the parties. All hereditary
actions are brought before the judge of the deceased's last domicile. Exp.
No. 616-1987 Callao.
NOTARIAL INTERVENTION
The notarial procedure in succession matters was regulated in 1996, by Law
No. 26662 on notarial competence in non-contentious matters, allowing
interested parties to resort indifferently to the Judiciary or the notary for the
procedure of rectification of items, adoption of capable persons, family
assets, inventories, verification of wills and intestate succession. In 2008,
Law No. 29227 added conventional separation and subsequent divorce and
in 2010, Law No. 29560 included the recognition of de facto union, the call
to a mandatory annual meeting and the call to a general meeting.
JURISPRUDENCE
It is not appropriate to modify the notarial act that declares heirs and
protocols the actions, without this modification being supported by the
procedure, because the notarial act is not an autonomous document but
rather the result of previous actions. Exp. No. 299-2009 Lima

The notary is responsible for the performance of the procedural acts carried
out at its headquarters and since it is a voluntary non-contentious process, it
is not appropriate for the registry office to rule on the inadmissibility of the
Intestate Succession processed before a notary because it is an internal act
that is of exclusive responsibility of the Notary. Beef. No. 053-2013-
SUNARP-TR-A.

CONFLICT OF LAWS
In Private International Law, its objective is to resolve conflicts of laws in
space. When a legal fact is subject to several laws due to the elements that
make it up, it is up to this branch of Law to decide which law has the best
title for its application.
Now, the elements of succession are the deceased, the successors and the
inheritance. When these three elements are subject to a single legislation, it
governs without any discussion. But when various legislations claim
jurisdiction of the legal fact by bringing together something or some of the
elements, a conflict arises. For example, it occurs when a person of one
nationality resides in another country, dies in a third country, has successors
in a quarter of his or her assets in a fifth, and the laws of several of these
countries claim to govern the succession. The solution transcends the field
of Inheritance Law to invade the area of private international law. As Vallet
de Goytisolo points out, it is not just a matter of having a nationality and a
different domicile, of having interests based in other countries and of dying
in a different country; It also happens that the testator normally has a family
and that his family relationships may be governed by a different law than the
one that regulates that situation.
Garcia, M. maintains that there are three divergent positions regarding the
law that should be applied for the regulation of inheritance: that of the
plurality of successions by application of the Law of the place of location of
the assets, that of the division of the succession based on of the movable or
immovable nature of the assets (which applies the personal law to the
former, the situation law to the latter) and the unity of the succession
through application of the personal law of the deceased.

Personal law system of the deceased

This system has as its legal basis the thesis that the succession is in the
person of the deceased, and that it is his will that determines the
transmission of the inheritance; in testamentary succession, expressly, and
in intestate succession, through silence. According to this system, it is the
personal law of the deceased that must be applied to open the succession.
This system has two streams:
Nationality criterion. Also called personal status. According to this, the law
corresponding to the place of birth of the deceased must govern.
Last address criterion. Also known as territorial, according to which the law
corresponding to the last domicile governs.

Territorial property law system

It is based on the theory that maintains that the succession is in the assets
of the deceased. Therefore, it is intended that the applicable law be that of
the place where they are located. This system is of German origin.

Mixed System
System adopted in Austria, Belgium, the United States, France, Greece,
Romania and the main American countries; pluralistic system.
The 1984 Code addresses this concern in the Book of Private International
Law. The repealed regulations were article VIII of the Preliminary Title and
articles 659, 660 and 661.

Echecopar expressed that these rules were sufficiently clear: Peruvian law
applied to Peruvians, to foreigners domiciled in Peru and when it came to
vacant inheritance.
In the case of a non-domiciled foreigner, with heirs who were neither
Peruvians nor resident foreigners and who left assets in Peru, his personal
law applied.
Thus, if the personal law of the deceased allowed Peruvians and foreigners
domiciled in Peru to inherit the same portion or a greater portion than that
which corresponded to them according to Peruvian law, that portion would
govern. But if it was minor or they were excluded, the heirs were
reintegrated with the assets they had in Peru until they reached the portion
according to Peruvian law that corresponded to them. This rule was
established by Andrés Bello, in article 998 of the Civil Code of Chile, which
gives relevance to it due to the author's specialty in International Law.
Article 660 only extended this rule to Peruvian or domiciled foreign creditors.

To this end, the national doctrine did not have a uniform criterion in relation
to said principles. Echecopar considers them fair and necessary, although it
recognized that they destroyed the unity of the rules applicable to a single
succession. (p.34) his opinion is based on reasons of public order,
expressing that it would not be possible for foreigners to transfer their assets
regardless of local laws.

León Barandiarán and Lanatta pointed out that this criterion is exaggerated
and was not consistent with a good technique of Private International Law; It
indicated that, if it was a matter of ensuring public order prevailed, because
this character was legitimate, the rule was justified only as far as forced
heirs were concerned, as occurs in Venezuela. This criterion is compatible
with the need to defend the institution of legitimacy, which is intangible, with
the principles of Private International Law.
Our current Code deals with the conflict of laws in the opening of succession
in Book Ten of Private International Law, in articles 2100 and 2101. The law
of the last domicile of the deceased is clearly established as a rule.

SUCCESSORY TRANSMISSION
This topic is regulated in articles 660, 661 and 662.
The concomitant consequence of the very fact of opening is the succession
transmission. Loewenwarter states that succession due to death does not
transfer, but rather transmits. With death, the opening of the succession and
the transmission of the assets of the inheritance occur at the same time.

JURISPRUDENCE
From the moment of a person's death, the assets, rights and obligations
that constitute the inheritance are transmitted to his successors. There is no
need for any document other than the will or the judicial declaration of heirs,
so that all the assets that were owned by the deceased at the time of his
death are transferred to his heirs. Exp. N° 1476-98- Lima

There are three forms of inheritance acquisition: ipso iurt, at the time of
opening the succession; through acceptance; and by judicial declaration.
The Italian Code, in its article 459, enshrines the second form, gored from
Roman Law. In this, there was the institution of recumbent inheritance,
through which the heir did not acquire possession by operation of the law
but through its acceptance. “It was accepted for this reason that the
recumbent inheritance continued to possess the deceased's assets for the
heir, avoiding an interruption of possession.

Other codes, such as the Chilean one (article 1240), enshrine this figure.
Modernly, it has no reason to exist, since the acquisition of the inheritance
operates ipso iurt from the death of the deceased, even if the heir is
unaware of the fact. There is no discontinuity solution between the
possession of the deceased and the heir. It is justified when, as in Italy,
inheritance is acquired with acceptance and not according to the saisine;
that is, from the denunciation to the addition of the inheritance.
The succession transfer must be understood with all the assets and
obligations of which the deceased is the owner at the time of his death; That
is, with all the assets and all the liabilities of the successor, as determined
by article 660, to the extent that the assets of the inheritance reach, by order
of article 661.

Article 660 refers to those assets that constitute inheritance, which are
transferable. The non-transmissible ones, because they are rights or
attributes of the personality, are extinguished with the death of the owner,
such as the right to name, honor, freedom, physical integrity - which are the
so-called innate goods, the life annuity, the mandate, food, some tax
obligations, housing and political rights. There are some rights, such as the
case of movable property, which, being transferable, are not part of the
inheritance. Even in that case they are received by right of blood and not by
right of inheritance, "and successor is understood to be the one who first
received the grace of the title, not the last holder (citation). In the case of co-
ownership, there is a singular nature, in which one person is the owner of
the container and another of the content. These are letters over whose text
the sender retains the copyright and the recipient retains ownership of the
written material, and the latter may, as De GASPERI (quote) points out,
destroy it by virtue of his de facto power over the letter.
EXISTENCE
This requirement refers to the personality that every passive subject in the
succession must have, also called capacity; not in relation to the capacity to
act, but to the legal capacity that every subject of law must have. Therefore,
the term capacity is not appropriate to identify it with existence, since the
latter is a presupposition of the former.
According to article 1, the human person is a subject of law from birth. The
capacity to happen thus refers to existence; implies the birth of the person.
However, to happen it is not necessary to have legal existence, natural
existence is enough; That is to say that the creature is conceived so that it
has the capacity to happen (quote). Thus, their right is suspended while the
birth does not take place.

BEST RIGHT
This situation is aimed at the status of successor. It means not being
preceded by a preferable successor (citation). In the case of heirs there is
an established order that indicates how they gradually receive the
inheritance, excluding each other. Relatives of a straight descending line
exclude ascending ones, and relatives closest in degree exclude the most
remote ones, except for the right of representation.
The exclusion of the orders according to their numbering has only one
exception: that of the spouse, so being heir of the third order, he concurs
with the first two orders; that is, with the descendants and ascendants.
CHAPTER II PETITION AND REINVIDICATORY ACTIONS
CONCEPT
Article 660 provides that successors acquire from the death of the deceased
the rights and obligations that correspond to them as inheritance. This
involves the legal acquisition of property and possession of the assets.
However, it happens that they do not achieve real and effective possession
of them because they are occupied or in the power of other people, so they
can possess them in the following way:

Pro-successore, when it comes to successors. In this case, the inheritance

petition action proceeds.
Pro-possesore, when they are acquirers of the successors or simply
possessors, in this case, the heir must file an action to claim hereditary
assets.

According to the aforementioned, the petitionary action is that action that the
heir directs against a successor to compete with him or to exclude him, if he
has a better right. In this first case, the defendant is a co-heir; in the second
an apparent heir or legatee.
The vindicatory action is one brought by the heir against the third party,
acquirer of the co-heir, the heir or apparent legatee or a third party, or
possessor without title. Thus, the claimant may take action against the third
party who acquired from a co-heir, for having the same right as this one,
against the third party who acquired from an apparent heir or legatee, for
having a better right than this one, and against the third party acquiring from
another third party. which in turn acquired from a co-heir.

The difference between the coheir and the apparent heir is that the former
has the same right to inherit as the claimant; The apparent heir is equally
heir as the claimant, but the latter excludes him because he has a better
right. As for the figure of the apparent legatee, it occurs when a person
disposes of their assets in legacies, affecting their forced heirs.

JURISPRUDENCE
To file an inheritance petition claim, the plaintiff will be entitled to claim said
right only and exclusively if he or she has the status of heir. In this sense,
the state of cohabitation in no way confers on the plaintiff the status of
spouse and therefore heir in accordance with articles 724 and 816 of the
Civil Code; fact that gives rise in limine to the declaration of inadmissibility of
the claim. Cas N° 2442-2003-Huarua.

LEGAL NATURE
Essentially they are real actions, because they are based on the rights of
ownership and possession of the goods which constitute their object.
However, the petitionary action goes beyond the scope of the real action
due to its universality.
Both actions are inherent to the condition of heir, and procedurally, they are
processed in knowledge processes, being imprescriptible. As our friend the
Argentine jurist GoYENA CoPELLO points out (quote) "every right is usually
made up of a substantive norm that recognizes it and an adjective norm that
ensures it." (p.11)

The differential characters between these actions are the following:

The petition action is directed against the successors; the claim against
third parties.

Against the petition action the defendant opposes his title of successor;
Against the claim he invokes his ownership title or just possession.
The petitionary action is universal and refers to the entire inheritance; The
claim is in a private capacity, addressing certain assets.

Jurisprudence
If an heir is in possession of one of the hereditary assets and has even
obtained the declaration of property owner in the corresponding
administrative procedure of acquisition prescription; This in no way
undermines the rights of the other heirs who are not in effective possession
of the property. By virtue of the right to request inheritance conferred on
them by law, they have the power to participate along with the other heirs in
the ownership of the property, an asset that was transmitted to them from
the moment of the opening of the succession. Cas. N.• 1449-2003-Tacna.

The expected right of the deceased member of the cooperative, that in the
future a piece of land would be awarded to him, was extinguished with death
as long as the loss of membership status occurs, and it is therefore not
feasible for his successor to inherit a expectational right that had already
been extinguished, since the status of partner is not transmitted to her. Cas.
No 1779- 2000-Puno.

The child out of wedlock can file an inheritance petition with respect to the
spouse of one of the parents when the latter recognized such a condition in
his or her will. Cas. N." 4400-2011-Artquipa.
The legal heir of the person who held the real right of ownership over real
estate cannot be considered a precarious occupant of that property, even if
he or she has been preterminated from the intestate succession. Its sole
hereditary vocation constitutes the title that justifies said possession. Cas.
N°4-2013-Lima.
SYSTEMATIZATION IN OUR REGULATION
There are two currents in relation to the way in which the action to recover
hereditary assets should be legislated. On the one hand, the theory of unity
proclaims that there is generically an action of succession claim,
by which the heir asks for what belongs to him. This thesis was included in
the repealed Code. The other, of duality, recognized by Peruvian doctrine
and by modern writers, embodied in our Code, recognizes that, given the
connection with the succession that the persons involved in the process in
which a petition action is heard, and The foreign character of one of the
parties that participates in the process in which a vindication action is
processed, are two different actions, with common and differential
characteristics, as we have noted.

Our Code describes these actions as follows: article 664, of the petition
action; article 665, of the vindicatory action; and article 666, of both.

REQUEST ACTION
It is regulated in article 664, which, according to the wording modified by the
current Code of Civil Procedure, prescribes that the right to request
inheritance corresponds to the heir who does not possess the assets that he
considers to belong to him, and is directed against the person who owns
them. possesses in whole or in part by way of succession, to exclude it or to
compete with it. He adds that this claim may be accompanied by the claim
of declaring the petitioner an heir if, having issued a judicial declaration of
heirs, he considers that his rights have been waived; as well as the
imprescriptibility of the action and its processing as a knowledge process.
Jurisprudence
When the claim for inheritance is raised, it must be understood, through
application of the principle of iura novit curia, that the petition for inheritance
is demanded. This request is appropriate, since the plaintiff's right to be
recognized as a proportional part of the condominium's assets is proven, so
that, after liquidation thereof, the corresponding portion must be delivered to
him. Gas. N.0 1242-1997-lca.

The inheritance petition is not only to declare the heir of the deceased, but
precisely it is the right that corresponds to the heir who does not possess
the assets that he considers to belong to him and is directed against
whoever owns them in whole or in part by way of succession. , to exclude it
or concur with it. Cas.N.0 1052-2002-Ica.

To file an inheritance petition action, it is not an essential requirement to

have been declared an heir, but rather that said action can be exercised by
someone who, having not been one, is considered to have rights over the
hereditary estate. To do this, you must add the declaration of heir to your
inheritance petition action. Gas. N.0 1275-2004-North Lima.

We find the following elements:

I. Inheritance petition: unlike the vindicatory action, which is singular,
the petition refers to all the assets of the inheritance. For this reason,
it is a simple sui generis action that does not properly fit within the
strict concept of real action, given that it does not have a specific
corporeal good as its substrate. It is a universal action to recognize
the status of heir and, as a consequence, claim hereditary rights.
II. It corresponds to the heir who does not own what he considers
belongs to him, against whoever owns them in whole or in part by
 way of succession: this last expression differs from the original text of
the civil code that referred to the last heir.

Jurisprudence
The lack of the deceased's first name on the plaintiff's birth certificate does
not prove that he is a person other than the deceased, since the numbers of
the identity document recorded in both the birth certificate and the death
certificate are the same, not It is necessary that an initial rectification
process be carried out before filing the inheritance petition claim. Case N.0
2004-9569-2000-J SC.

The inheritance petition action is very personal and concerns only each
deceased heir, which is why it cannot be declared in favor of those who do
not have a hereditary vocation, or those who represent their parent at the
time the succession was opened and/or have not intervened in it. the
respective demand. Therefore, if the plaintiffs did not request that their
father be declared heir, who was still alive on the opening date of the
deceased's succession, they cannot
1.

2.