I. GENERAL PROVISIONS A. Definition and Concept Applicable laws, Effectivity 1. Civil Code of the Philippines: August 30, 1950 2.

Family Code: August 3, 1988 Prior to the New Civil Code: the Old Civil Code (the Spanish Code of 1889) was in effect Succession in General By succession, the transmissible property, rights and obligations of a person pass, upon his death, to his heirs and other successor’s mortis causa. The Corpse in Succession Succession refers only to the inheritance or universality of the property of the deceased transmitted to his successor’s mortis causa. It has no reference to the corps which cannot be considered as part of the inheritance, inasmuch as it is not property. Related Matters 1. Disposition of the corpse (Articles 305 to 310, NCC) 2. Validity of authorization given by a person to the parts of his corps for medical, surgical, and scientific purposes (RA 349, as amended by RA 1056) 3. Surviving Spouse given priority over the next of kin (i.e. actual order in which relatives are obliged to support the deceased) as to the duty and right to make funeral arrangements. Article 744, NCC: Succession is a mode of acquisition by virtue of which the property, rights and obligations to the extent of the value of the inheritance, or a person are transmitted through his death to another or others, either by his will or by operation of law.

Two concepts of succession 1. The transmission of the property, rights and obligations of a person 2. The universality or entirety of the property, rights and obligations transmitted by any of the forms of succession admitted in law. First concept more accurate a. Article 772: succession is a mode of acquiring ownership b. Etymological meaning of succession: to substitute, to subrogate, or to put one person in place of another. Succession defined (Tolentino) • The mode of acquiring ownership, by virtue of which the inheritance of a person is transmitted to us, either according to his express will and words, or if by some natural or accidental circumstances he has made no will, according to his presumed will provided by law as analogous to what he would made had he executed one. • A mode of acquisition, by virtue of which one succeeds to the universality of the transmissible rights, active and passive, of a person who has died. Succession and inheritance distinguished Succession refers to the legal mode by which this inheritance is transmitted to the persons entitled to it surviving the deceased. Inheritance refers to the objective element of succession, to the mass or totality of the patrimony of a deceased person.


Article 712, NCC: “Ownership is acquired by occupation and by intellectual

“Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and intestate succession, and in consequence of certain contracts, by tradition”. “They may also be acquired by means of prescription.” Mode and Title distinguished Mode of acquiring ownership and other Title for acquiring ownership and other

real rights is the specific cause which gives rise to them, as the result of the presence of a special condition of things, of the aptitude and intent of persons, and of compliance with the conditions established by law. Mode the proximate cause, of the acquisition.

real rights is the juridical act which gives the name to the acquisition of the real right, but which in itself is insufficient to produce it. Title is the remote cause

The civil code is illogical and scientific, neither daring to abandon the theory of title and mode (the traditional Roman law distinction. In following the Spanish Code), nor adapting itself to modern trends (German, Swiss and Austrian Codes). The Different Modes of Acquiring Ownership 1. Occupation 2. intellectual Creation 3. Law 4. Donation 5. Succession (Testate and Intestate) 6. Tradition (in consequence of certain contracts) 7. Prescription Article 1311, NCC: “Contracts take effect only between the parties, their assigns and heirs, except in case where the rights and obligations arising from the contract are not transmissible by their nature, or by stipulation or by provision of law. The heir is not liable beyond the value of the property he received from the decedent.

“if a contract should contain some stipulation in favor of a third person, he may demand its fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere incidental benefit or interest of a person is not sufficient. The contracting parties must have clearly and deliberately conferred a favor upon a third person.” Contracts bind heirs 1. As a general rule, rights and obligations under a contract are transmitted to the heirs of the parties. The heirs are not considered as third parties, because there is privity of interest between them and their predecessor. 2. Transmissible contracts a. A lease contract is transmissible to the heirs of the lessee b. The heirs of a party in whose favor a trust exists, may enforce the trust against the trustee c. The heirs of a person bound to reconvey a piece of property may be compelled to make the reconveyance. d. Obligations, except money debts, are transmissible to the heirs of the parties, and they may be compelled to fulfill the same. The heirs of the parties to a contract may make a valid novation of said contract. 3. Intransmissible contracts a. Purely personal i. By provision of law ii. By the very nature of the obligations arising therefrom (such as those requiring special personal qualifications of the obligor) b. Money debts (which merely constitute as a charge against his estate) Basis of Law of Succession The law of succession is based partly on the law of family relations, and partly on the law of property. Sanchez Roman: “Succession aims to make possible and effective the orderly enjoyment by the human species of the essential elements of physical life, giving a note of subsistence and perpetuity of the patrimony which cannot be maintained without the transmissibility of the property constituting it.” Law on Family Relations


1. Donat: “God has united us to the family to which we are born; family ties create rights
and obligations, and the successional right is nothing more than a right founded upon a duty.” 2. Laurent: “Succession springs from natural law. The individual, during life, seeks to accumulate wealth in order to perform his duty of service and assistance to the members of his family. The knowledge that, upon death, the products of his effort and work will be enjoyed by those who are the natural objects of his affection within the family furnishes the greatest incentives to his initiative, industry, and thrift.

Law of Property 1. Navarro Amandi: “Succession is but a corollary to the right of property; without it, the right of ownership would be an imperfect thing.” 2. Sanchez Roman: Characteristics of Production of Wealth a. Individuality: prevent stagnation of wealth b. Inequality: A product of the independence and freedom of human activities, through labor and the peculiar qualities of each one c. Transmissibility: A salient feature of the right of property, which is incomplete without the right to transmit the same. The Code Commission followed the prevailing tendency towards a new concept of legal order, which pursues the socialization of ownership, not in the sense of “socialism” but in the sense of effectivity adapting property to the needs of society. In retrospect, the Old Civil Code was drafted when the prevailing philosophy was that of extreme individualism in the law of property and of succession. Means employed by the Code to attain the stability of the social order 1. The Purification of the system of private ownership of its abuses (e.g. prohibitions in donations inter vivos) 2. The Closing of those channels upon which wealth has flowed in torrents from generation to generation of a particular family (e.g. limited fideicommissary substitutions in Article 863, and the increased free portion when children and descendants survive in Article 888) 3. The Emancipation of innocent persons from bondage of undue conservation which has denied them the rights to share in the estate of their parents (e.g. illegitimate children) 4. The Elimination of distant relatives who may succeed to property to the accumulation of which they have not contributed anything (e.g. right to succeed without a will within the 5th degree and no longer the 6th degree) 5. The Staying of the dead hand to prevent it from meddling with the affairs of the living (e.g. elimination of the substitutions known as pupilar and ejemplar) Fundamental Changes in the NCC 1. Greater freedom is given to the testator in the choice of the form for his will or testament (i.e. Execution of holographic will has been permitted without witnesses or attestations) 2. Greater facility in the probate of wills is provided or the introduction of the system of probate during the lifetime of the testator (i.e. Probate can only be effected after the death of the testator in the prior legislation) anti mortem probate 3. The surviving spouse is given a better position in the law of succession (e.g. legitime changed from usufruct to full ownership; higher degree in the order of succession in intestate succession) 4. In the legitime of legitimate children and descendants (the mejora or betterment) has been abolished 5. The reservas and reversions (except reserve ironcal, which was reincorporated by Congress) has been abolished B. Subjects of Succession

1. Who are the subjects?
Article 775, NCC Decedents and Testators 1. Decedent: a person whose property is transmitted through succession (generally speaking, as he/she may or may not have left a will) 2. Testator: a decedent who left a will

Article 782, NCC Concept of Heir (General) Anyone who succeeds to the whole or to a portion or fraction of the inheritance (understood as the indeterminate mass or totality of the transmissible property, rights, and obligations of the deceased), whether by virtue of a will or by intestacy. 1. includes all relatives who succeed by virtue of the laws of intestate succession 2. includes all persons, whether relatives or not, who take what might be called the residuary estate under a will Kinds of Heirs 1. Compulsory heirs a. Those who succeed by force of law to some portion of the inheritance, in an amount predetermined by law, of which they cannot be deprived by the testator, except by a valid disinheritance. b. Succeeds regardless of the will of the decedent 2. Voluntary or testamentary heirs (free portion) a. Those who are instituted by the testator in his will, to succeed to the inheritance or the portion thereof of which the testator can freely dispose; their right to the succession depends entirely upon the will b. Succeeds by reason of a will 3. Legal or Intestate heirs a. Those who succeed to the estate of the decedent who dies without a valid will, or to the portion of such estate not disposed of by will b. Succeeds in the absence of a will Legatees and Devisees 1. Legatees: one who is given a gift of personal property by will 2. Devisee: one to whom real property is one to whom real property is given by will There are devisee(s) and/or legatee(s) only in testamentary succession The devisee or legatee, by express disposition of the testator, succeeds him in a determinate or individualized thing or quantity, without continuing his personality Importance of the difference between heir(s) and legatee(s) Although the difference between “heir” and “legatee” (or devisee), which is transcendental in the Spanish law, has lost much of its importance in Philippine jurisdiction it does not mean that the distinction has been entirely abolished so as to render the provisions of the Code regarding institution of heirs useless or superfluous. Article 887, NCC Compulsory and Intestate heirs distinguished COMPULSORY HEIRS INTESTATE HEIRS Called to succession by operation Called to succession by of law operation of law Succeeds to his legitime even Succeeds only when the when the testator has so deceased has not disposed of disposed of his property by will his property by will * an heir of whatever classification is absolutely free to accept or renounce the inheritance Law on Legitime explained • the law on legitime is a restriction, not on the freedom to the heir to accept or repudiate the inheritance, but on the freedom of the testator to dispose of his property • the fact of being a compulsory heir imposes no obligation to accept or receive the legitime Kinds of Compulsory Heirs 1. Primary a. Those who have precedence over and exclude the other compulsory heirs b. Legitimate children and descendants (legitimate, legitimated, adopted) 2. Secondary a. Those who succeed only in the absence of primary heirs b. The legitimate parents and ascendants 3. Concurring a. Those who succeed together with the primary or the secondary heirs b. The illegitimate children, and the surviving spouse Primary Compulsory Heirs

1. Legitimate Children and Descendants a. Rationale: Since the law on legitime flows from natural law, it follows that relatives
in the direct line should receive preference in the succession; and since in the ordinary course of nature, the father or mother should die ahead of the child, the law confers preferential legitimary rights upon the children and descendants. b. Application: if there are children, all of them living and with capacity to succeed and none of them has been disinherited, only such children succeed to the exclusion of the other descendants who may be existing at the time of the testator’s death. Thus, the nearest in degree exclude the more remote, except in cases where representation is proper (incapacity). 2. Legitimated Children (children legitimated by subsequent marriage of the parents) have the same position as legitimate children and descendants. a. Article 272,NCC: Children who are legitimated by subsequent marriage shall enjoy the same rights as legitimate children b. Article 274,NCC: The legitimation of children who died before the celebration of the marriage shall benefit their descendants. 3. Adopted Children have the same successional rights, in relation to the adopting parents, as those of the legitimate child in relation to its parents a. Article 189 (1), FC: For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters.

Parents and Ascendants 1. Legitimate and Legitimated (Secondary Compulsory Heirs) a. Entitled to legitime only when the deceased does not have legitimate children and descendants b. Concurrence of illegitimate children and their descendants with parents or ascendants of the deceased is not an obstacle to the forced succession of the parents and ascendants because the share of the illegitimate children are taken from the free portion and do not affect the legitime of the parents and ascendants 2. Illegitimate parents (Compulsory heir to the extent provided by Article 903) a. Article ___, NCC: the legitime of the parents who have an illegitimate child, when such chilled leaves neither legitimate descendants, nor a surviving spouse, nor illegitimate children, is one-half of the hereditary estate of such illegitimate child. If only legitimate or illegitimate children are left, the parents are not entitled to any legitime whatsoever. If only the widow or widower survives with parents of the illegitimate child, the legitime of the parents is one-fourth of the hereditary estate of the child, and that of the surviving spouse also one-fourth of the estate. b. Compulsory heirs only in the absence of legitimate, or illegitimate children of the decedent 3. Adopting parents (not a Compulsory heir, according to Tolentino, as the law is silent) a. Article 342, NCC omitted by FC (impliedly repealed): the adopter shall not be a legal heir of the adopted person, whose parents by nature shall inherit from him b. Article 190, FC: legal or intestate succession to the estate of the adopted shall be governed by the following rules: i. Legitimate and illegitimate children and descendants and the surviving spouse of the adopted shall inherit from the adopted in accordance with the ordinary rules of legal or intestate succession; ii. When the parents, legitimate or illegitimate, or the legitimate descendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters; iii. When the surviving spouse or the illegitimate children and the surviving spouse of the adopted, they shall divide the entire estate in equal shares, one-third to be inherited by the illegitimate children, one-third by the surviving spouse, and one-third by the adopters; iv. When only the adopters survive, they shall inherit the entire estate; and v. When only collateral blood relatives of the adopted survive, then the ordinary rules of legal or intestate succession shall apply. c. Article 189 (1), FC: For civil purposes, the adopted shall be deemed to be a legitimate child of the adopters and both shall acquire the reciprocal rights and obligations arising from the relationship of parent and child, including the right of the adopted to use the surname of the adopters.

in general. testate or intestate. Therefore. Article 892. Illegitimate Children 1. other illegitimate children (e. To retroactively apply the new right would impair the vested rights of heirs. When marriage is null and void ab initio (as in bigamous and incestuous marriages). and is silent as to their becoming compulsory heirs. indicated that the latter (compulsory heirs) was not intended. determines the right of such child to succeed. the widow/ widower will be entitled to succeed only when he or she is the innocent spouse Effect of Reconciliation 1. at the time of the conception of the former. the survivor in the supposed marriage is NOT a surviving spouse entitled to legitime 3. 2. Enforcement of the Right 1. FC (formerly Article 108. Valid marriage required between deceased and the survivor 2. 2. BOTH widows share equally in the portion which is the legitime of the surviving spouse (following the principles of the Laws of the Partidas) 4. were not disqualified by any impediment to marry each other. the same rights as a legitimate parent but only such as are specifically provided in Article 190 of the Family Code. NCC (repealed by FC): illegitimate children other than natural in accordance with article 269 and other than natural children by legal fiction are entitled to support such successional rights as are granted in this Code. But when the marriage is bigamous and the spouses contracted the marriage in good faith. Successional rights recognized by the New Code can be claimed only by those whose parents die after the effectivity of the Code. 6 . Due to the silence of the law on legitimes.d. The fact that Article 190 FC enumerates the cases where adopters inherit by legal or intestate succession to the estate of the deceased adopted person (not making him generally a legal heir). Article 63 (4). are natural. NCC (repealed by FC): only natural children can be legitimated. When the marriage is merely voidable. Guilty spouse excluded from succession. NCC: b. one of the spouses should die. Children born outside wedlock of parents who. and unless the law clearly intends to favor the adopter. Article 66 (2). Construction of Article 887 NCC vis-à-vis illegitimate children 1. the existing marriage remains valid and produces civil effects until set aside by the court having jurisdiction in a proper action for annulment. natural children by legal fiction 3. 2. Effects of Legal Separation 1. acknowledged natural children 2. all doubts should be resolved against him. Article 892 must be read in conjunction with Article 63 (4) of the Family Code (formerly Article 106. and would amount to deprivation of property without due process of the law. Article 269. the survivor gets his/her legitime regardless of whether he or she is the guilty party. Illegitimate children can claim successional rights even if they were born prior to the effectivity of the Code. he cannot be entitled to the legitime of legitimate parents and in the law of intestate. Article 887 (4) and (5) are merged into one as a group of compulsory heir. adulterous children (spurious)) Natural Children by legal fiction previously not granted successional rights in previous legislation a.g. Adoption is for the benefit of the adopted. If after such reconciliation. b. in case of legal separation. he is not given. FC: 2. Surviving spouse 1. unless the spouses agree to revive their former property regime. NCC) a. Article 287. They are not required to be first recognized by their putative parents. as the death of the parent and not the birth of the illegitimate child. NCC): the final decree of legal separation shall be set aside. Illegitimate children required to prove their filiation. but the separation of property and any forfeiture of the share of the guilty spouse already affected shall subsist.

the reason for incapacity cannot exist. although it does not state any order of preference. third. or the only brother or all the brothers may have repudiated the inheritance. full blooded take portion in inheritance twice those of half blood brothers and sisters d. there is taken into consideration. because as long as the judgment of in second. it is only logical that it is only then that the capacity of the heir is determined. NCC 1. 3. 7 . not only the moment of death of the decedent. 2. The law cannot be expected to inquire into facts not judicially established. not for the purpose of the suspension of the marriage (which is already dissolved by death) but for the purpose merely of determining whether there is no ground for legal separation. but also the time when the condition is fulfilled. Concurrence of nephews or nieces of half blooded brothers and sisters with nieces and nephews: same rule in Article 1005 apply in Article 1008. 2. brothers or sisters inherit their own right while nephews or nieces inherit by the right of representation. Article 1003. Determination Article 1034. Concurrence of nephews and nieces alone: there is no need for the right of representation as there are no uncles or aunts who will be prejudiced. i. NCC Collateral relatives Articles 1004-1010.Effect of Death before Decree If the death occurred during the pendency of the legal separation proceedings. the determination as to whether capacity to exist should be suspended up to that time. Effect of separation in fact Right of legitime is preserved. Concurrence of half brothers and sisters alone. Concurrence of full and half brothers and sisters. There is equal division of all the property of the common parent. Capacity to Succeed a. Thus. When all the brothers of the decedent may have predeceased him. Concurrence of brothers and sisters with nephews and nieces: brothers or sisters shall inherit per capita while nephews and nieces shall inherit per stirpes pursuant to Article 1005. Paragraph 1: inasmuch as succession opens at the death of the decedent. h. c. f. Article 1009. Concurrence of full-blood and half-blood nephews and nieces: full blood and half blood relationship of nephews and nieces taken into account in view of Article 1009. Brothers and sisters shall inherit in their own right (the whole blooded taking twice the share of those half blood). must be understood in connection with the general rule that the nearest relatives exclude the father. Full blooded brothers and sisters (proceeding from the same father and mother inherit in equal shares b. Paragraph 2: it is only a clarification of the general principle. and fifth causes of unworthiness has not become final or the month allowed in the fourth cause has not elapsed. while nephews or nieces inherit by the right of representation (the whole blooded taking the portion of their father/mother which is double to that pertaining to the father/mother of the half blooded nephews and nieces. or such brothers may all be incapacitated: Nephews and nieces to succeed by their own right. g. irrespective of the time when the property was acquired. the action is allowed to continue. Therefore. NCC Applications a. because it is why at the latter moment that the rights to the succession are consolidated and produce their effects. contrary to the generality that Article 975 seems to suggest. Article 1007 applies. Concurrence of uncles and aunts with nephews and nieces: The law allows the right of representation because the number of nephews and nieces will directly affect the apportionment should it be made per capita. e. Paragraph 3: in case the institution is conditional. and not by the right of representation.

For it has specifically chose to leave the amount of successional rights to the decedent’s national law. the national law of the decedent must apply.al. his own heirs cannot claim any right through him. 1. NCC  Reason for the adoption of the new article: the provision is in line with the principle established in Article 16. Adoracion’s father.Conditional institution What is referred in paragraph 3 is suspensive condition. Once endowed with juridical personality. He does not transmit anything to his heirs. Specific must prevail over general law. As discussed in Article 8778. Who may succeed? Article 1024. Condition after death. Death (of heir) before condition.. He would be wanting in the capacity to succeed at the time of compliance with the condition. devisee. b. the sister of the decedent. because the condition has not yet been fulfilled. Congress has not intended to extend the same succession of foreign nationals. as provided by Articles 16 (2) and 1039 of the Civil Code. it is necessary to have legal existence or juridical personality. because this is the condition on the fulfillment of which the right depended thereon are perfected. Hermogenes was divestive of his legitime which was reserved by law for him. filed a petition for reprobate of the will which was allegedly executed in the USA and for her appointment as administrator of the state of the said decedent. Nenita. the law which governs Adoracion’s will is the law of the USA which is the National Law of the deceased. both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions. Even if the condition should happen after the death of the hair.. either natural or artificial. Requisites for the possession of capacity to succeed 1. the person’s capacity to succeed follows as a matter of course. et. executed an affidavit of Adoracion whereby he adjudicated into himself the ownership of the entire estate of Adoracion. NCC Capacity presumed Every person has capacity to succeed mortis cuasa. This is a general statement which is not supported by the specific provisions of the law providing for 8 . The presumption of the law. according to law 2.al. Article 1039. a citizen and permanent resident of USA died and left a will executed in the said country. or legatee before the happening of the suspensive condition renders the testamentary disposition inoperative and without effect. which provides “intestate and testamentary successions. et. whether natural or artificial. No incapacity or prohibition to succeed expressly provided by law. even if his death occurs after that of the testator. unless some special cause for disqualification or incapacity exists. is always in favor of capacity. the death of the heir.  Rule as to the intrinsic validity of the provisions of the will: as regards the intrinsic validity of the provisions of the will. General capacity of the person. because his death has extinguished his personality and capacity to succeed. Only persons may succeed mortis cuasa In order to be considered a person. As a compulsory heir. The petitioner argue that since the respondent judge allowed the reprobate of the will. It is therefore evident that whatever public policy or good customs maybe involved in our system legitimes. Issue: whether the Philippine law shall apply in as much as the National Law of the deceased does not provide legitime? Held: Under Article 16 (2) and Article 1039 of the Civil Code. LEONIDES 129 SCRA 524 Facts: Adoracion Campos. No right has been vested upon the heir. 2. She died leaving properties both in the Philippines and the USA. paragraph 2. in the absence of some provision excluding him. Hermogenes. Applicability of rules of incapacity (2nd paragraph construed) Provisions relating to incapacity apply equally to testate and intestate succession. CAYETANO VS. shall be regulated by the national law of the person whose succession is under consideration. whatever may be the nature of the property and regardless of the country wherein said property may be found.

if the fetus had an intra-uterine life of less than seven months. Article 1026. Article 1025. ( if there is condition. the succession does not really open except from the happening of the condition or the arrival of the day certain. The actual existence of an association or corporation at the time of the death of testator is not essential. (already died at the time of death of decedent) 2. as well as Article 1028 are applicable only to testamentary succession. Strictly adhering to legal principles. he maintains. The heir who dies before. NCC Conditions prescribed by Article 41 For civil purposes. the provision of the second paragraph must be considered only as a general rule. Absolute per se: those absolutely incapacitated are disqualified to succeed in any form. There is absolute incapacity when there is no civil personality. He maintains that the existence of the corporation at the time of the testator’s death does not render it incapacitated to succeed. In such cases. if it is subsequently born and has legal personality at the time the condition happens of the day arrives. Manresa. Manresa. not by virtue of the general rule of capacity. Although the conceived child is considered born for all purposes favorable to it. 2. Relative or par accidens: those who are relatively incapacitated are disqualified only with respect to certain persons or property. Article 1029. 3. Permission by the law is a necessary result of their legal existence. NCC 9 . The fact of actual existence. When the institution is under suspensive condition or from a day certain.incapacity to succeed. Sanchez Roman’s view in consonance with concept of capacity to succeed 1. is different form the fact of being permitted by law. but by reason of the special provision of this article conferring capacity upon them. if the class does not exist at all. then it has the capacity to succeed. Unworthiness (A relative incapacity): by reason of certain acts a person who has capacity to succeed is deprived of it. (not yet alive) 3. Incapacity under paragraphs 1 to 5 of Article 1027. but that justice and the dictates of practical existence demand that the probable public and private utility that may be produced by such dispositions should not be nullified. Associations or corporations which do not legally exist at the time of the opening of succession are incapacitated to succeed. Scaevola. as well as he who is not yet conceived at the time of the death of the testator. 2. and its absence presupposes the inexistence of the juridical entity. hence the presence of any number within the class at the time the succession opens makes the institution valid. Incapacity to succeed is a consequence of the inexistence of natural or juridical parsons before the civil law. Thus. Kinds of incapacity 1. whereas. it is not deemed born if it dies within twenty-four hours after its complete delivery from the maternal womb. the fetus is considered born if it is alive at the time it is completely delivered from the mother’s womb. to anyone. or to any quantity of property. if it is subsequently organized. 2. it will prevail over the death) Deviating Comments by authorities on capacity to succeed 1. even if the unborn person instituted has not yet been conceived at the time of the death of the testator. Manresa’s corporation cannot succeed. Manresa’s example however is really the institution of a class and not of particular individuals. the institution is void. It acquires personality only when it is subsequently born with the conditions mentioned in Article 41. NCC Capacity by law Not all entries mentioned herein are persons having juridical existence. 3. it lacks true juridical personality. nevertheless. In certain cases a child not even conceived at the time of the death of the testator may yet succeed mortis causa. Judicial Existence Essential 1. They succeed. without prejudice to the determination of the true scope of specific disqualifications. cannot succeed because of lack of juridical personality at the precise moment when the transmission of successional rights takes place. However.

burden or charge imposed upon an heir. *unlike Article 1029. In case the testator has not designated the person to make the designation of the poor and the distribution of the property among them. and the class is determined. However. the property should be distributed as in case of intestacy. Appeal to the Court *under the present state of the law. In case. the executor or administrator of the estate shall do so. NCC Application of the article This article contemplates a disposition in favor of persons who may be unknown to the testator A class herein is instituted. None qualifying as poor (intestacy) *When none qualify as poor. and the municipal treasurer will never take place. 4. 3. this article allows dispositions for the benefit of the soul.Scope of Application 1. The disposition made herein is applicable only when the testator has not provided otherwise in his will. whose existence is essential for the validity of the testamentary disposition. the distribution provided for in this article cannot be observed. 2. the mayor. his nearest relatives. the portion originally destined for the poor passing to the legal heirs of the testator. the present article is an institution of a definite and determined class. 1933 which was probated by the CFI of Tarlac. giving due respect to the religious and moral ideas of the deceased. Bulacan. In addition the will contained the following controversial request to his nearest male relative who would study for the priesthood. legatee or devisee. prayed that the bequest declared inoperative and that they be adjudged as the persons entitled to said rice lands since no nearest male relatives of the testator has ever studied for the priesthood. without any mention of prayers. *the Court cannot be considered as a mere rubber stamp to give the seal of approval to whatever may be reported to it. or if he merely disposes of it for prayers. then this property cannot be distributed in the manner prescribed by the article. Under the Rules of Court. The moment the testator specifies the application to be made. RIGOR 89 SCRA 493 Facts: Father Rigor. It is the determination of the individuals belonging to the class that is left to the persons mentioned by the law. the parish priest of Pullilan. his three sisters and his cousin. he named as devisees. The disposition referred to should not be confused with one which has merely the character of a condition. thus where the express will of the testator cannot be given effect for legal reasons. as such persons are practically the agents of the testator in making the selection. The selection of some as poor can also be impugned by others. but has not specified the particular prayers or pious works to which his property shall be applied. The intervention of the justice of the peace. PARISH PRIEST OF VICTORIA VS. in the absence of manifest error or bad faith. 10 . Article 1030. if the testator should dispose of his property only for pious works. Soul as beneficiary The real beneficiary in such a will is the soul of the testator. Thus. the law supplies his presumed will in the form of intestate succession. there is a very strong presumption in favor of upholding the selection or conclusions of the persons designated to make the determination of two are poor. Issue: whether the bequest to a nearest male relative who would study for the priesthood could be operative despite no male relative ever studied for the priesthood. without referring to pious works. The heirs of Father Rigor. died on August 9. the article contemplates a case where the testator has made a disposition for the application of the whole or part of his property for prayers and pious works for the benefit of his soul. Although death extinguishes juridical existence. the determination that there are none who qualify as “poor” can be contested by persons claiming to be poor. there will invariably be an executor or administration for the settlement and distribution of the estate in a case as contemplated by the article. if the testator merely states that he institutes his soul (something that has no legal existence) it is believed that the present article will apply. In his will. or the person charged with such duty.

Held: The Court held that the bequest refers to the testator’s nearest male relative living at the time of his death and not to any indefinite time thereafter. But if no such sufficient length of time has elapsed. this paragraph should have formed part of Article 1025. it has no common basis with the others preceding it. it produces legal effect even if the priest received the confession of the testator or administered spiritual aid to him during his last illness. The persons disqualified are disqualified only under certain circumstances. If it cannot be determined whether at the time of his death he was already completely cured or not of the illness during which he made his will. staying by his side during such illness. that there is danger that the testator may die of it. Disqualifications (1-5) apply only to testamentary succession. the verbs used are both in subjunctive mode. then his failure to revoke the testament must be considered as a ratification of the same. Who are incapable of succeeding? Article 1027. if the testator recovers from his illness and he enjoys normal health for a sufficient length of time as to enable him to reflect on the wisdom and the consequence of the testamentary disposition he made during his illness. 2. not to such illness. • The law has extended expressly the disqualification to ministers of other religions. If the testamentary disposition was made before the last illness. Confession during last illness • The law requires that the priest must have heard the confession of the testator during his last illness. Last illness means that of which the testator died. but they give rise to the inference that the confession takes place before the making of the testamentary disposition. Their disqualification is thus only relative. It is immaterial whether the illness was protracted or brief. except in case of representation when it is proper (Article 1025. The disqualified entities are absolutely incapacitated. but acts merely as his adviser. is not incapacitated by the article. They cannot succeed any person at any time or under any circumstance by testament or by intestacy. To construe them as referring to the nearest male relative at anytime after his death would “render the provisions difficult to apply and create uncertainty as to the disposition of his estate. but to safeguard the legal heirs from being defrauded by suggestions of some confessors who may induce penitents to dispose of their property in the manner and to the persons contemplated by the prohibition. the testamentary disposition remains inoperative even if the death be due. the heir or legatees must be living at the moment the succession opens. but for spiritual aid or assistance before death. 3. like those by Catholic priests. however. • If there has been undue influence by the confessor even before the will was made. but to some other cause such as an accident. however. the remedy is not under the present article but under Article 839. who does not hear the confession of the testator during his last illness. Will made after confession • The prohibited disposition is that which the testator may make in favor of the priest who may have shriven him. Will during the last illness 1.CC). which provides among the other cause of disallowing a will: “if it was procured by undue and improper pressure and influence on the part of the beneficiary or some other person. 2. “In order to be capacitated to inherit. it is not essential that the testator die of the particular illness during which the will was made. A priest. The illness must be such. 2. Disqualification (6) is misplaced. chronic or acute. Disqualification of Priest or Minister 1. tacit confirmation cannot be presumed and the nullity of the disposition remains. The purpose of the provision is not to restrict the liberty of the testator to dispose of his property. which do not provide for confession.” c. NCC (relative incapacity) Extent of incapacity 1.” When no testamentary benefit 11 . and in relation to particular testators.

the testamentary disposition must be in favor of the disqualified. not as testamentary heirs but intestate heirs. When the disposition is not equivalent to making such persons as heirs. may succeed only in case of intestacy. Incapacity of guardian • a testamentary disposition made by a ward in favor of his guardian before the approval of the final accounts of the guardianship is void. are covered by the disqualification. The law does not incapacitate the disqualified from being executors since under the Rules of Court. the prohibition applies. His intervention thus is not essential to the effectivity of the disposition in his favor. A doctor called in for consultation by the physician attending the testator would not be disqualified. even if the ward dies after the approval of such accounts. Thus. when a person has the qualifications for the work. unless. No beneficial interest A testamentary disposition which does not give a beneficial interest to the witness does not disqualify him. If there are three other component witnesses to the will. If they. or druggist. health officer or druggist who took care of the testator during his last illness has such a great deal of influence over the mind of the testator that he is absolutely prohibited to succeed under the testator’s will. they get the property. etc. What guardian covered All guardians. and all of his acts are subject to the supervision and approval of the probate court. the recipient must have taken care of the testator during his last illness. then the institution is void.. in a manner that is continuous. however. surgeon. Incapacity of physician. a provision giving to the witness a trust or power to sell does not constitute such an interest as will render him incompetent or will avoid the testamentary disposition. the disposition may be valid if it does not give any benefit to them. because these are given to them by force of law and not by the will of the testator ( intestate succession). • If the priest or his relatives happen to be the only intestate heirs. nor the pharmacists who merely prepared the medicine for him. No prejudice to intestacy • if the confessor or minister or his relatives within the 4th civil degree are also relatives of the testators are compulsory heirs. He may receive compensation for his services as executor (just payment and not an act of liberality) but such compensation is regulated by law.• • • to be inoperative. • The determined point with respect to time is the date of the final approval of the final account. if they are entitled to succeed according to the order of intestate succession. nurse. it is clear that they get their legitimes. or even if compulsory heirs as to the free portion is concerned. • A void testamentary disposition does not absolutely disqualify the relatives form succeeding. • To be disqualified. 12 . Incapacity of Testamentary Witness The exception provided by Article 823 should be read into the provisions of paragraph 4 of the present article. nurse. They are disqualified as long as they have any responsibility as guardians. etc. There will be intestacy with respect to the past ineffectively disposed. not because of the present article but by reason of Article 1031. the executor becomes as such only after letters testamentary have been issued to him. it passes by right of accretion to other heirs. Relatives of guardian • the last does not disqualify the relatives of the guardian to succeed the ward by will • if it can be shown that the guardian’s relatives have been instituted merely as an indirect means of enabling the guardian to benefit from the inheritance left by the ward. such as writing a book. It is valid that the testator leave certain sums for the confessor or his relatives within the 4th civil degree for the performance of certain determinate services. whether a guardian of his person or a guardian for his properties. “Final accounts” means that which is submitted by the guardian upon the termination of his authority as guardian. • the physician. the fact that the beneficiary attested such will does not have any material effect upon the existence or validity of the will. legatees or devisees. either by his removal or resignation or the disappearance of the cause of guardianship.

the guardian. any person practicing medicine legally or illegally and even their assistants are deemed included in the prohibition. The article renders void attempts to go around the prohibitions against dispositions in favor of incapacitated persons. and are intended to prevent circumventing of the prohibitions on donations by resorting to the making of a will as means of disposing of property in favor of the disqualified donee. a testamentary disposition instituting an heir or legatee. where it is the law and not the decedent that disposes of the property in favor of the heirs. • The interposition may be made in either of these ways: o By the institution of a person who has capacity. and the attesting witness. The different paragraphs of the present article cam from different independent articles of the old Civil Code and the Code of Civil Procedure.• • It is not necessary that the recipient be a legal practitioner of his profession. • The property need not be actually delivered to the incapacitated person. and the ultimate enjoyment of the inheritance by the incapacitated person. Who are disqualified persons • The parties who are really disqualified are those who are in the position to wield an influence upon the mind of the testator: the priest. with a verbal charge or direction to deliver the inheritance to the incapacitated person o By disguising the disposition in the form of a contract o By simulating debts in favor of the incapacitated Proof of interposition • The prohibited interposition must always be proved. it cannot be presumed. NCC Article 739 Application of the Article These disqualifications are based on considerations of morality. The disqualification applies only when the will was made during the last illness of the testator and after the beneficiary had at least begun to take care of him. NCC (Y caused the death of grandchild of X) Interposition prohibited • What the law prohibits to be done directly cannot be done by indirection. Article 1031. and it was only in Article 753 of the old Civil Code. not because those relatives are “disqualified. • The purpose of these disqualifications is to avoid testamentary disposition in favor of persons who are conclusively presumed to have influenced the making of the will in their favor by reason of their special relations to the testator. that the exception in question was provided. if it is he who really enjoys and benefits from it. referring to the disqualification of the guardian. • Dispositions made in favor of their relatives who are expressly mentioned by the law are rendered void. Article 1028. refer only to testamentary succession and does not include intestate succession.” but because the law presumes juris et de jure that they are merely interposed for the benefit of the real incapacitated person. This reason cannot exist in intestate succession. • It is enough to show the absence of benefit to the person instituted. Hence. Provision for remuneration A testamentary provision which is remuneratory (payment of professional fees) is valid as such disposition is not a gratuitous act but simply a compliance with an obligation to pay for services rendered. Exceptions as to close relatives The exception in paragraph 3 does not extend to the other paragraphs. Applicability to intestacy • The paragraphs of the present article. except the last. with 13 .

when the case is dismissed because the heir dies before the judgment can be rendered. • It is essential that the heir must have been convicted by final judgment to become unworthy. which have made the law deprive of inheritance those who have made themselves unworthy of it according to ordinary social appreciation. or ascendants o There must have been a final conviction of such attempt • The degree of the commission of the crime is not material: whether there may be a mitigating circumstance does not alter the situation.the intention that the relatives mentioned should ultimately be the real beneficiaries. not supporting them. • Even if he does not intend the person interposed to benefit under his will. is by itself a tacit pardon by the testator. his or her spouse. If such institution is valid. Abandonment of Children • abandonment of children is a ground for disinheritance (Article 920) • “Abandonment” as a cause of unworthiness. it does not disqualify a person to succeed every other person. does not make him unworthy of succession. • Unworthiness produces its effects. he remains to be unworthy. with knowledge of the cause of unworthiness. even if the latter refuses to obey him. descendants. there is no reason why the interposition should be void. What is important is that there was a homicidal intent. Hence. • Mere act of inducing his daughter to lead a disgraceful life. moral or educational welfare. the law should discourage violations of its provisions. even against the will of the deceased. or because the crime has prescribed. or he must have made an attempt against her virtue. is not used in the limited sense of having exposed the children to the danger of death. • The causes of incapacity by reason of unworthiness are applicable to testate and intestate succession. or because of some lawful defense. there will be no unworthiness. there must be some positive act showing perversion on the part of the parent. • They do not include those who are such by reason of unworthiness. and not attending to their physical. despite the fact that some paragraphs thereof expressly refer only to “testator” • Incapacity by reason of unworthiness is not absolute. but merely disqualifies him to succeed the particular person against whom the act of unworthiness has been committed. Article 1032. NCC – unworthiness Nature and basis of unworthiness • The incapacity is based on considerations of morality. he must be held to assume the risk that his will be frustrated. Attempt against life • Also discussed as a ground fro disinheritance under Article 919 • Elements of this cause to operate o The heir must have made an attempt against the life of the decedent. 14 . Further. The institution of the unworthy person. as when he pardons the act of unworthiness in a manner different from what the law prescribes in Article 1033. where the heir is merely an accomplice. • Mere tolerance by a parent of the immoral or corrupt life which his daughter has chosen to live. inasmuch as the unsuccessful act shows the moral perversity of the parent. would be a sufficient cause for unworthiness. Attempts against virtue • Similarly discussed under Article 920 • To be disqualified under these grounds. guilty of adultery/ convicted of adultery) Frustration of testator’s intent • When a testator disposes of his property in a prohibited manner. Inducing immorality. he must have led or persuaded the daughter to live a corrupt of immoral life. but in the broad and general sense of not giving proper care to the children. and the solution suggested will at least tend to have the effect. is not such an interposition as is prohibited by the article. (X gave – Y. however.

Effects of unworthiness • Incapacity by reason of unworthiness disqualifies a person from succeeding to the estate of the person against whom the act of unworthiness has been committed. however. but preserving the right of 15 . Failure to report violent death • Requisites of the cause: o The heir must be of full age o He knows of the violent death of the decedent o There is an obligation to make an accusation o Failure of the heir to report such death to the proper authorities within one month • This cause of unworthiness will never have the occasion to operate. but also declaring or testifying falsely as a witness against him. as there is no obligation to make an accusation for violent deaths under Philippine law. • False testimony is equivalent to false accusation. the cause of unworthiness will apply only when there is a failure within one month to report such death. or altering the testator’s will o falsifying or forging a supposed will of the decedent • The first four acts must have been committed through fraud. will cause incapacity. the guilty spouse is rendered incapacitate to succeed the offended spouse ab intestate or by a will already existing at the time of the legal separation. • If the offended spouse asks for legal separation. they cannot succeed each other by will or testament. concealing. executed in any manner.” • The article does not disqualify the guilty pair from succeeding each other. Only his or her paramour is disqualified to succeed the offended spouse. provisions in favor of the offending spouse made in the will of the innocent spouse shall be revoked by operation of law. The heir. • In the event that there should be some time a law requiring persons who have knowledge of violent deaths to denounce the same. even if it may incriminate the decedent and be the basis of his conviction. Acts relating to will • the acts constituting the cause of unworthiness o causing the testator to make a will o causing the testator to change an existing will o preventing the decedent from making a will o preventing the testator from revoking his will o supplanting. devisee or legatee escapes liability by reporting the violent death even if he omits to reveal the identity of the author of the crime or even helps him to escape. Under Philippine law. violence. and it is decreed. under Article 63 of the Family Code: “(4) The offending spouse shall be disqualified from inheriting from the innocent spouse by intestate succession. does not become unworthy. Adultery of concubinage • The heir. The mere commission of the offense is not enough to disqualify. • The testator’s spouse is not rendered unworthy by the article. but one who merely testifies to the truth.• Executive clemency or prescription of penalty does not save him from unworthiness to succeed inasmuch as such facts imply the final conviction. deaths occasioned by crime (violent deaths) are prosecuted de oficio or at the instance of the government. on the ground of adultery or concubinage. or undue influence. The reproduction of Article 761 of the old Civil Code in Article 1036 in present code shoes clearly by implication that the intention of the law is to exclude the compulsory heir who is unworthy from his legitime. Moreover. False accusation • Elements of cause are discussed under Article 919 • False accusation includes not only the filing of complaint against the decedent without cause. intimidation. • Loss of legitime applies to the causes of unworthiness. devisee or legatee who is convicted of adultery or concubinage with the spouse of the decedent is unworthy to succeed the offended decedent. and no one is required to make any accusation. Under Article 1028 in relation to Article 739. even if the express provision on loss of legitime merely does away with the cause of doubt as to the effect of unworthiness upon the legitime. The last two acts by themselves.

He inherits nothing. is treated by the law as if he did not exist. • The law cannot permit that the inheritance be acquired in full or in party by those guilty of these offenses against the deceased. • if the pardon is express. • The pardon may be either express or implied. d. cannot restore the unworthy heir in such case. like what can be made to make disinheritance ineffective. The mere silence of the testator. it is only reasonable that the latter should be given the right to determine whether the incapacity should subsist or not. or his omission to expressly disinherit the offender. Effect of pardon • once the act of unworthiness is pardoned. or made in writing other than a will. Article 1035 uses the words “persons excluded from inheritance” in referring to the unworthy heir. irrespective of the good or bad faith of the heir who made the alienation. or had predeceased the decedent. Article 1033. NCC Validity of alienation • The validity of alienation made by the disqualified heir before the declaration of incapacity is made to depend upon the good faith of the transferee. 16 . • Exclusive clemency. and exclusion can only mean total exclusion from the inheritance including the legitime. On donations • Donations inter vivos are not affected by the incapacity of the donee to succeed the donor. the institution never became effective when the institution or the will itself has been revoked.. no other form being admissible. does not erase the unworthiness or incapacity of the heir. Reconciliation. NCC Pardon of unworthiness • The testator is given the power to condone the causes of unworthiness. as if the cause of unworthiness had never existed. Revocation of Pardon Whether the pardon of unworthiness can be revoked or not depends upon the manner in which the pardon is made. o Express pardon: made by the execution of a document or any writing in which the decedent condones the cause of incapacity.representation in the descending line. o Implied pardon: tacit or implied pardon of the cause of unworthiness is effected if the testator had knowledge thereof at the time he made the will. against the decedent. just as in the case of disinheritance. • It should be noted that the act of unworthiness may constitute an act of ingratitude which would entitle the donor. is not tacit pardon. It is a penalty declared by law ___ ___ ___ offenses committed by the heir. Since the incapacity arises from the offense or act committed against the decedent. As the institution does not become operative except upon the death of the testator. Summary of the effects • Disqualification by reason of unworthiness is a kind of legal disinheritance. The effect of unworthiness is thus an exclusion from the entire inheritance. Such donations shall be considered as having been made to strangers. • The capacity that has been recovered cannot cease except by a new cause. The same result follows if the will is void because it lacks the formalities required by the law. it causes constitute impediments to success. effect of alienations by the excluded heir Article 1036. or pardon by the President. etc. during his lifetime to revoke the donation. • The unworthy heir. etc. the subsequent revocation of the will or of the institution should be considered as rendering the pardon ineffective. even if the donees should be compulsory heirs. then the pardon is immediately operative and irrevocable • if the pardon is tacitly made by instituting the disqualified person in a will. The forms of such pardon are limited to those expressly specified by the law. The only cardinal requisite is that the pardon must be after the act of unworthiness has been committed. the heir is restored to full capacity to succeed the decedent.

rights of the excluded heir Article 1035. such parson shall have possession of and title to the same. NCC Sources of provision This article was taken from Rule 92 (now Rule 91.“When and by whom claim to estate filed. or if sold. • Only a child or descendant can be represented. Application of Article 1035 • Article 1035 provides for the representation of the unworthy child or descendant by his children and descendants. • The rules on possessors in good faith or in bad faith shall be applicable. heir. then there shall be intestate succession. is valid as to such transferee. NCC Indemnity for expenses • The disqualified person who has entered upon the property may have incurred necessary and useful expenses. Article 1014. on the hereditary property. • When he is obliged to return the property to the rightful heir. liabilities of the excluded heir Article 1038. legatee. NCC Representation of unworthy heir • Unworthiness disqualifies a compulsory heir from succeeding even to his legitime. or if when concurring with the children or descendants who are compulsory heirs there is no substitute appointed. the alienation. Necessary expenses for preservation therefore must be reimbursed to every possessor. Section 4. whether gratuitous or for a valuable consideration. His act. as well as expenses for ornamentation. rents) Restitution with fruits 17 . • If the unworthy child or descendant is the only compulsory heir. e. however. widower or other person entitled to such estate appears and files a claim thereto with the court within 5 years from the date of such judgment. Article 1037.” f. his right to indemnity for such expenses or to remove the improvements he has made depends upon his good or bad faith. which are reserved by the article only for his children and descendants. • If the unworthy child or descendant does not himself have children or descendants. Amounts transferred • The children and descendants of the unworthy child or descendant shall acquire his rights to the legitime. widow. being personal. accessions. NCC (what to return: property and fruits. his other heirs cannot acquire his rights. but a claim not made within said time shall be forever barred. after deducting reasonable charges for the care of the estate. whether he be in good faith or in bad faith. The children or descendants of the unworthy heir will get not only their parent’s legitime but also whatever part of the free portion may be subject to distribution among the intestate heirs. or without the knowledge of the facts which render the transferor unworthy. should prejudice the innocent children and descendants of an unworthy child or descendant. unworthy parents and ascendants.• If the transferee acted in good faith. ROC) Rule 9. Section 4. – If a devisee. the municipality or city shall be accountable to him for the proceeds. or the surviving spouse cannot be represented. Rules of Court .

The action is essentially to compel such heir or legatee to restore the property. • The action is not one solely for the purpose of declaring the incapacity of the heir who has taken possession of the hereditary property. Thus.e. in which the determining factor is good or bad faith. The law here conclusively considers the incapacitated heir as a possessor in bad faith. g. whether actually appearing therein or not therein. the action pertains in the first instance to those of the nearest degree. the incapacitated person returns the thing with its accessions and the fruits and rentals he has received or could have received through the exercise of reasonable diligence. the rights and obligations of the incapacitated persons who has entered upon the hereditary property are governed by the general rules applicable to possessors. o This is based on the principle that neither the heirs nor the transferee of the incapacitated person can acquire a greater right that he has. • The conflicting rights to the property of the deceased are to be litigated. such 18 . but where the judgment to that effect depends upon a finding in the same cause that the heir or legatee in possession is incapacitated. then those next in degree may bring it. Effects of administration proceedings • if the administration proceedings have been instituted for the settlement of the estate of the testator. but has himself occupied the hereditary property. whether the incapacity be absolute. Whatever the true nature of the possession. and so on in their order or succession. • This includes such matters as the right to improvements and the liability for losses and deteriorations. of course. If the incapacitated person has not received rentals. 5 years from the moment of possession by the disqualified person.. property of the deceased is given to an incapacitated person. he should be obliged to pay the reasonable amount of rentals. and in such proceedings an order of distribution is issued by the court. to the rightful owner) is imposed upon all incapacitated persons. relative. whether in good or bad faith. NCC Action to recover inheritance • As a consequence of Article 1038. its accessories. obviously including those who would inherit the property once the incapacity of possessor is declared. if in the order of distribution. which would be the true measure of the benefit he receives. • The determination is conclusive upon all parties interested who may have notice of such hearing. together with all its fruits and accessions. i. • Defendant o If at the time the action is brought. and the question of who is entitled to the properties left is determined. in the administration proceedings. to the provision of the Spanish Mortgage Law and the Land Registration Law. the transferred is the proper defendant. if they do not wish to bring the action. 1037 and 1038. prescription of action Article 1040. This is without prejudice. and there are several intestate heirs. in which property is adjudged to a person who is incapacitated. o If no substitution is provided and the right of accretion does not exist. Parties to action • plaintiff o Those who may have an interest in the succession. or by reason of unworthiness. it may be asked whether such adjudication is conclusive and can no longer be attacked once the administration proceedings have been terminated. a limit should be fixed as to the time within which the action to compel such restitution may be brought. it is just that although he does not materially receive the rentals from a 3rd person. the property has passed to the heirs of the incapacitated person.• • • The obligation to make restoration (restitution of the hereditary property. Improvements and deteriorations • Outside of the matters covered by Articles 1036. such heirs may be made defendants o If the property has been alienated to the incapacitated person. fruits and rentals.

Rights which are intransmissible 1. 2. Rights arising from public law (e. Such debts are chargeable against the property or assets left by the deceased. both with respect to the rights of the creditor and as regards the obligations of the debtor. to the transmissible rights and obligations existing at the time of the decedent’s death.g. not in the inaccurate equivalent of this term in contractual obligations. 2. by their nature and purpose. Private rights whose duration is limited by law to the lifetime of the owner 4. it does not bind those who have no notice of the hearing. 6. those are the obligations which do not pass to the heirs. in the sense that the personal qualifications and circumstances of the debtor have been taken into account in the creation of the obligations. 5. Private rights founded on purely personal relations 3. Exceptions: a. The right of the donor to revoke the donation by reason of ingratitude of the donee. family rights. civil personality. The obligations to give legal support. c. Rights and obligations extinguished by death (enumeration) 1. If the decedent’s property is not sufficient to cover all of them. if he does not revoke the donation even if he can do so. but in its proper sense. 8. Only what remains after all such debts have been paid will be subject to distribution among the heirs. except in cases expressly provided by law. • Money debts: Only money debts are chargeable against the estate left by the deceased. 11. nut not the effects of the agency already executed. are. Those that are intransmissible by express provision of law. The rights of patria potestas 7. usufruct. which belongs only to the innocent spouses.The rights arising from agency. but constitute a charge against the hereditary property. for they are extinguished by death (e. Those arising from marriage. 3. • In addition. rights. Obligations of deceased • Debts: The provisions of the Rules of Court on the settlement of the estate of the deceased person cannot be overlooked.g. such as life pensions given under contracts. as a general rule. Those which are personal.adjudication will be conclusive upon all those who had notice of the hearing before the distribution. Rights which are purely personal. Object of Succession Article 776. Those that are intransmissible by express agreement or by will of the testator. The action for legal separation. except those expressly provided by law or by the will of the testator (e. The heirs of the deceased are no longer liable for the debts he may leave at the time of his death. 4. 10. 9. C. personal servitudes). The right of the guardian. intransmissible. and obligations not extinguished by his death. The right to receive support. all property accruing thereto from that time will pertain to the heir. A sensu contrario.Criminal responsibility. Private rights which require the intervention of the owner for their exercise Rules observed 1. however. suffrage and public employment) 2. 3. the heirs cannot be made to pay the uncollected balance. Rights of obligation are by nature transmissible and may constitute part of the inheritance. The action to annul marriage. 19 . • Inheritance is limited to the deceased’s property. The right of usufruct. either with respect to the persons or as regards the property of the spouses. NCC What inheritance includes • The inheritance does not include everything that belongs to the deceased at the time of his death. discharge of public office). b. not extinguished by death and properly constitute part of the inheritance.g. Rights which are patrimonial or relating to property are.

by virtue of the right of accession. 2. Personal rights (e. air and the sea). right of suffrage). NCC Article 1178. all rights acquired by virtue of an obligation are transmissible in accordance with law. sacrificing their liberty. The accession to such property is not transmitted by death. their independence or beliefs. Existence of object The object • must be in existence at the time of the perfection of the contract. and the transferee would be considered in lawful possession of the same as well as of the credit. Public offices. (Relate Section 1311. which parties cannot modify at will.• • Other obligations which do not constitute money debts are not extinguished by death. even without the article. or • has the possibility or potentiality of coming into existence at some future time Future things • future things can be object of contracts • future things are those which do not belong to the obligor at the time the contract is made but may be made. is entitled to the accessions and fruits which have accrued since the death of the decedent. Sacred things. raised. Examples of things outside the commerce of man 1. it includes those things which are not susceptible of appropriation or of private ownership and which are not transmissible. patria potestas or marital authority. roads. especially sale by installment).g. Article 1311.g. NCC Outside the commerce of man • All kinds of things and interests whose alienation or free exchange is restricted by law or stipulation. it is acquired already by virtue of the right of ownership which is vested from the moment of the predecessor’s death in the successor. common things (e. Corpse. Services which imply an absolute submission by those who render them. inherent attributes of the public authority. NCC. and honorary titles and distinctions). it is transmitted by death. • An instrument evidencing a credit may be transferred or assigned by the creditor to another.g.g. NCC Tolentino: Article 781 erroneous • Article 781 is not only a superfluity but also creates an erroneous concept of inheritance. lease. • In Roman law. especially when estate passed on to the heirs prior or without proceedings). 4. or disregarding in any manner the equality and dignity of persons (e. and political rights of individuals (e. 3. Article 781. • An heir. squares and rivers). perpetual servitude of slavery). NCC Applications of Article 1178 • when there is no stipulation with regard to the assignment of an obligation. 5.g. • Inheritance is property acquired mortis causa. or acquired by the obligor after the perfection of the contract • future things includes not only material objects but also future rights • contracts involving future things may either be 20 . deliver land sold by the decedent. plazas.g. Article 1347.cannot be inherited. the status and capacity of persons. obligation to pay rent. Property while they pertain to the public dominion (e. and must still be considered as forming part of the inheritance (e. NCC Article 1429. As long as legal wife/husband has a right to the corpse. unless the contrary is shown. and res nullius (as long as they have not been appropriated). it is outside the commerce of man. It is juridically erroneous to say that inheritance includes such accession.

Article 108. even before a partition thereof has been made.g. The rights of the fideicommissary heir comes from the testator not from fiduciary. Issue: whether the properties sold are part of the inheritance? (Void contract) 21 .o conditional. the contract does not fall within the prohibition of Article 1348 Contrary to law or morals • Contract is void if at the time it is entered into. Not part of the inheritance • When the object of the contract is not part of the inheritance. The heirs of the former claimed that the said properties should be part of the inheritance. Requisites for the prohibition 1. an expectancy of a right which is purely hereditary in nature Inheritance before partition not future inheritance: after the death of a person. the succession must not have been opened at the time of the contract. but does not defeat the creditor’s claim which shall be paid in pesos) • The determination of morality depends on our sense of our/the courts sense of decency. An agreement for the partition of the estate of a living person. even if delivery of such object is dependent upon the death of one of the contracting parties (e. that the succession has not yet been opened 2. only the promissory is bound by the contract to use all means so that the 3 rd person may perform the prestation. the 3rd person is not bound. that the promissory has. sold properties to one of the heirs of the executor. the object is contrary to law or morals. that the object of the contract forms part of the inheritance. It is enough that it be mandatory or prohibitive (A statute requiring all debts in money to be paid in Philippine currency. provided that the testator has already died. and indemnification likewise descends to the heirs of the person injured. and 3. is also void. reparation. or subject to the coming into existence of the thing. CA JULY 31. in case of death. Trial Court declared the subject properties having been sold before the death was no longer part of the inheritance. A contract renouncing the right to inherit from who is still alive. or one of the parties bears the risk of the thing never coming into existence Future inheritance • the law generally does not allow contracts on future inheritance CONTRACTS ON FUTURE INHERITANCE In order to be future inheritance. but as a creditor. is void. or o aleatory. • In a contract in which the prestation of a 3rd person is promised. He cannot obligate a 3rd person. before his death. CONTRACTS BY FIDEICOMMISSARY HEIR ON EVENTUAL RIGHTS The contract entered into by a fideicommissary heir with respect to his eventual rights would be valid. RPC The action to demand restoration. a promissory note in dollars is null and void. the properties and rights left by him by way of inheritance can be the subject-matter of a contract among or by his heirs. REYES VS. 1954 Facts: decedent Benedicto de los Reyes. because the rights of the heirs are transmitted to them from the moment of the death of the decedent. would be in a position to inherit from him. whether an act is in consonance with the respect due to society or is repugnant to it Prestation of third party • The prestation promised in a contract must be personal to the party. A person can obligate only himself. The law need not be penal in nature. made between those who. with respect to the object. even if executed while the fiduciary is still alive. the prohibition does not apply. reversion of donated property upon the death of donee) • If the right of the party over the thing is not by virtue of succession. life insurance.

(If the contract is void. in certain sense. • It is immaterial whether a short or long period of time elapses between the death of the predecessor and the entry in the possession of the properties of the inheritance.” Death the determining point • The moment of death is the determining point when the heirs acquire a definite right to the inheritance. and the tax is based on the value of the property at that time. as of the moment of death of the predecessor. it should be understood as “the rights to the succession of a person are transmitted from the moment of his death. and even circumstances may be modified to such an extent that he who expected to receive property may be deprived of it. the heirs of the original defendants in this case has been merely substituted in his place upon his death. the will of the testator may vary. the properties are part of the inheritance. For before the death of the testator. Trial Court rendered decision in favor of Guinto. 22 . • The right of the heirs to the property of the deceased vests in them even before judicial declaration of their being heirs in the testate or intestate proceedings. notwithstanding the postponement of the actual possession and enjoyment of the estate by the heir. according to the Civil Code. whether such right be pure or conditional. the heirs may still be entitled to the subject properties. 1953 Facts: on October 3. The appealed decision is reversed and the deed of sale was annulled and the parcel of land involved mere declared as pertaining to the estate of the decedent Benedicto de los Reyes. however. While the case was on its original appeal Santiago died. Medina deprived him of his possession. Illustrations • The right of the state to collect the inheritance tax accrues at the moment of death.Held: yes. Guinto alleged that he has been in possession of the said land since 1934. but also the right of possession. regardless of any subsequent appreciation or depreciation. Inasmuch as the death of a person merely consolidates and renders immutable. and by virtue of prior manifestations of his will or of cause predetermined by law. NCC Transmission of Successional Rights • the language of the article is criticized by some commentators. the will of the testator becomes immutable. Opening of Succession Article 777. D. 1941 Leon Guinto filed an action for forcible entry against Santiago Medina. The law as to the succession can no longer be changed. the property still forms part of the inheritance in order not to prejudice the heir) LEON GUINTO VS SANTIAGO MEDINA OCTOBER 7. the heirs cannot compel the administrator to deliver to them the property inherited. and the rights to the succession acquire a character of marked permanence. Such case may be considered as a circumvention of the law as the forced heirs may be deprived of their rights to their legitime. The possession of the hereditary property is deemed transmitted to the heir without interruption and from the moment of the death of the decedent in case the inheritance is accepted. Therefore. When death supervenes. even these properties sold by the decedent may still be the object of succession and would be part of the estate and as much. the law may change. rights which up to that moment were nothing but mere expectancy. because the right is always deemed to retroact to the moment of death. and that on 1941 by means of force and intimidation. • While the hereditary estate is under administration. their liability for damages (money debt) is only to the extent of the value of the property that they might have received if any from him. Issue: whether the liability of heirs may exceed the amount of inheritance? Held: no. • What the article really means is that the succession is opened by the death of the person from whom the inheritance comes. • A bequest of land to the nearest male relative of the testator who would study for the priesthood means the grantor’s nearest male relative at the time of his death and not any indefinite time thereafter. disinheritance cannot be effected. Possession of hereditary estate • To the heir passes not only the right of ownership.

Emptio rei speratae vs Emptio spei EMPTIO REI SPERATAE (purchase of an expected thing) EMPTIO SPEI (purchase of a hope or expectancy) 23 . Article 2263. The acceptance of the inheritance by the person called to the succession. NCC Moment of Death • The decisive fact which gives origin to the right of heirs. • Successional rights granted in favor of illegitimate children cannot be given retroactive effect and be made to apply to the estate of the deceased who died before the effectivity of the new Civil Code. devisees and legatees is the death of the decedent. The express will of the testator. the provisions of the law prescribing the presumed will of the document. NCC Things with potential existence • A valid sale may be made of a thing. • The provisions of the new Code. • One who sells something he does not yet own is bound by the sale when he acquires the thing later. o The death is considered to have taken place on the last day of the period of absence required by law. within the limits prescribed by the law. o The presumptive date is fixed on the very day of the occurrence of the event which may have occasioned death. which though not et actually in existence. Presumption of Death • Death is not limited to natural or physical demise. NCC New rights created • The article gives a retroactive effect to newly created rights. • A man may sell property of which he is potentially and not actually possessed. an absence of 5 years will be sufficient in order that his succession may be opened. calling certain persons to succeed him. provided they do not prejudice or impair any vested or acquired right. 2.Elements for transmission 1. for the same would have the effect of impairing the vested rights of another who is deemed to have become owner of property of the deceased upon the latter’s death during the regime of the old Civil Code. were held inapplicable to one claiming recognition and a share in the state of the alleged natural father who died before the new Code want into effect. NCC Article 1347. it includes presumed death occasioned by prolonged legal absence. NCC Article 1461. or on the absence of a will. • Under Article 391 o The disappearance of the persons enumerated therein is under circumstances which give rise to the conviction or belief that they are victims of some catastrophe or fatal event. Article 2253. and the title will vest in the buyer the moment the thing comes into existence. 3. relaxing the rigidity of the rules of the old Code regarding proof or recognition of natural children. and then belonging to the vendor. Article 533. • Under Article 390 o After the absence of 10 years. a person shall be presumed to be dead for the purpose of opening his succession. Death of the person whose succession is in question: A person is not made to succeed by the mere fact of death of the predecessor for such will deny him the right to accept or repudiate the inheritance. is reasonably certain to come into existence as the natural increment or usual incident of something already in existence. but if he disappeared after the age of 75.

and arises without any necessity of a judicial declaration. Loss of vessel or airplane • These terms must be understood in their broad meanings. Missing in war 24 . NCC Article 390. • The presumption can be availed of in any action or proceedings. because it is different to conceive that a living person would abandon persons and things for a long period of time without returning to his domicile or sending news of himself. and aeroplanes will include all aircraft. This will include not only voyages in the open sea but also passage along the mouths of rivers. NCC Article replaced by Article 84 of the Family Code Article 132. zeppelins. they are more properly designated as missing persons. whether airplanes. balloons. etc. • The period is to be computed from the same date as the period provided in Article 384. • Such a judicial declaration does not add anything to the force of the presumption. such contract is void. NCC Presumptive death of missing persons • The article establishes a declaration of presumptive death in case of qualified absence. which would merely create a doubt as to their existence. except for purposes of re-marriage under the Family Code. which will still be only prima facie and can be thrown by proof that the absentee is actually alive. and if such date cannot be fixed. When death deemed to occur • The presumption of death provided in the article arises from ordinary absence. hydroplanes. Such contract is valid under the 2nd paragraph of the article If the parties intend the contract to exist at all events so that the buyer will have to pay the price even if the thing does not actually come into the existence. Article 130. Vessels will include all watercraft. and the price should be paid even if the thing does not come into existence. • The presumption is created. • The death is presumed to have taken place on the last day of the period of absence required by law. so that if the thing does not come into existence the contract is considered as not made and there is no obligation to pay the prize. but under circumstances which give rise to the conviction or belief that they are victims of some catastrophe or fatal event. the contract is aleatory. Article 391. Under the last paragraph of the article. Judicial declaration not necessary • The presumption of death is created by law. • A sale of property to which the vendors did not have any title yet at the time of the execution of the deed of sale. space craft. Trips which are only in inland waters are not included. Illustrations • An agreement for the sale of property yet to be adjudicated by the court is valid and binding. canals. the court determines the middle of the period in which the event could have happened. in the course of such voyage. • The presumptive date of death is fixed on the very day of the occurrence of the event from which death is presumed. • The persons presumed dead herein cannot be considered as merely absentees. NCC Presumption of Death. but there can be no independent proceeding for the express purpose of securing a judicial declaration that a person is presumptively dead. • The disappearance is not under normal conditions. etc. • The los of the vessel must be during a sea voyage.If the parties make the contract depend upon the existence of the thing.

whether the donation is in a marriage or not. the amount that can be given by donation propter nuptias is the same that can be given in ordinary donation. • If the regime adopted by the spouses is the absolute community of property. as long as it is made in view of the marriage. but also to: o Those who are employed by or render services to the armed forces (e. it is necessary that it be during military operations.g. In danger of death • other circumstances include o earthquakes o fires o explosions o inundations o dangerous expeditions o cave-ins of mines o volcanic eruptions o landslides • period of reckoning the 4-year period o the death should be considered to have taken place on the day of the danger o if the danger continues for several days. It is not enough. FC Present property • The law permits donation propter nuptias of not more than 1/5 of the present property of the donor spouse. The presumption applies not only to soldiers. it is contended that the period should be computed from the last day of such danger o In cases of expeditions or similar ventures of which nothing is heard after it has stated. that the disappearance of such persons be during wartime. strokers in warships. reporters. as a concession to custom or the practice of giving some property to the spouses at the time of marriage.• • • The term “war” is construed generally. and cameraman) In the German Code. etc) o Those who render voluntary service (e.g. the period necessary to give rise to the presumption of death must be computed from the conclusion of peace or the actual end of the war. Basis of the law • The law is based on the policy that no spouse should be allowed to take advantage of the love or tender feelings of the other to acquire property from the latter (that’s why Article 87 prohibits donation between spouses during marriage) • The rule is relaxed when donation is made before or at the time of marriage in a marriage settlement. if favorably concluded. is taken into account. as there is a possibility that the missing person might have been taken as a prisoner of war and still alive. photographers. and the donation is in the marriage settlement. guides. the limitation is not applicable because all the property of the spouses become absolute community property. doctors. however. but includes all military operations or undertakings in armed fighting. • In view of the reason of the law. • If present property is given by anyone other than one of the future spouses. Article 84. the date when it should be completed. nurses. guerillas) o Those who follow or stay with the armed forces (e.g. the limitation to 1/5 of present property shall apply. • In the marriage settlement excludes the property donated from the absolute community. Donation of future property • these donations take effect upon the death of the donor spouse 25 . the limitation logically applies. and not limited to war as understood in international law. In excess of 1/5 • Article limits the donation propter nuptias between spouses when they agree on a regime other than the absolute community of property.

Persons other than the affianced parties cannot give donations propter nuptias of future property (Article 761. Since the will can be revoked by the testator at any time before his death. • So long as the person called to the succession does not manifest his willingness to be an heir. express will of the testator or provision of law 2. may be waived by the donor. 26 . if the donee unduly refuses to support the donor when he is legally or morally bound to give such support (Article 765. and the heir is deemed to have accepted the inheritance from the death of the decedent. or any act involving moral turpitude. the donation propter nuptias of future property may be so revoked. • Some donations propter nuptias are revoked by operation of law. the perfection of the right to succeed. if the donee had contracted the marriage in bad faith (Article 43) o Donations made in the marriage settlement. Its limits are governed by the rules of testamentary succession provided by the Civil Code. death of the person whose property is the subject of succession 3. NCC Voluntary acts • the freedom to accept or repudiate the inheritance follows the principle that rights granted by law may be waived. Article 1041. can be forced to take any property through inheritance. acceptance of the inheritance Acceptance and repudiation defined • Acceptance of the inheritance: the act by which the person called to succeed by universal title by the testator or by law manifests his will in making his own the universality of the rights and obligations which are transmitted to him.• • • it cannot be made in the marriage settlement but in a will or testament. his wife or children under his authority 3. • The acceptance of the inheritance is the confirmation of the institution of the heir. and the donor does not have to bring an action for revocation. or of his wife or children under his parental authority 2. and the condition does not take place. even though he should prove it. FC Revocation of donation propter nuptias • Present article enumerates causes for the donor to revoke a donation propter nuptias that has already taken effect. NCC) Article 86. if the marriage does not take place (Article 81) o If the donation is subject to a suspensive condition. NCC) Requisites for the transmission of successional rights 1. such as: o When a subsequent marriage is contracted by one whose spouse has been declared presumptively dead. if the donee should commit some offense against the person. however. • Repudiation is the manifestation by such heir of his desire not to succeed to the said universality Acceptance necessary • the heir is such by the mere fact that he is so designated in the will by the testator or he is called by law to succeed. No person. provided such waiver is not contrary to public interest or public order or prejudicial to 3rd persons. The action to revoke the donation. in which case the donations does not take effect Acts of ingratitude which are grounds for revoking donations 1. By the act of acceptance this condition is completely altered. the inheritance remains in a condition of suspension. The right of succession is transmitted to him from the moment of the death of the decedent. honor or property of the donor. however. unless the crime or the act has been committed against the donee himself. if the donee imputes the donor any criminal offense.

the continuity of ownership of property should not suffer interruption. Articles in the law of contracts on the effects of causes vitiating consent are applicable to them. Creditors of the estate would not be prejudiced by partial Article 1042 Retroactive Effect • By the nature of things. where the act is purely beneficial to the minor or incapacitated person. error and deceit will defeat the effects of either. the intervention of the court is unnecessary. • When he is not sure whether there are other relatives nearer in degree. Even just before the moment of his death he may change his mind. as the very nature of transmission or property mortis causa argues against the validity of acceptance or repudiation with a term or subject to a condition would be contrary to the fundamental principle of succession. Article 1044 Capacity to accept • Any person who has the free disposal of his property may accept or repudiate. • By fiction of law. intimidation. Where acceptance or repudiation is ineffective • When he knows that the will in which he is instituted is null and void. 2. When acceptance is made. o Repudiation must always be judicially authorized. Partial acceptance * Philippine jurisdiction permitted partial acceptance or repudiation. He stands on the same footing as a mere legatee in the Civil Code. He must be certain of the death of the person from whom he is to inherit: o The will of man is changeable. the person is not an heir either by the will of the deceased or by the law. Term or Condition The total suppression of Article 990 of the old Civil Code does not mean the consequent elimination of the express prohibition on acceptance with a term or condition. Until the death of the person whose inheritance as accepted or repudiated. • Persons having the capacity to succeed but not having the capacity to dispose of their property may not accept or repudiate. the law makes it retroact to the moment of the death of the decedent. Their legal representatives may do so for them. • When judicial approval required o Acceptance. • When he is not certain whether he has been instituted heir or not. The person must be certain of his rights to the inheritance before he can accept or repudiate. acceptance of the inheritance may be made by the parents or guardian of minors or incapacitated persons without the need of judicial approval. undue influence. The person who accepts or repudiates an inheritance from a living person cannot know whether he will survive or predecease the decedent or whether he will have the capacity to succeed in the latter’s succession. there is no reason why the heir should not be allowed to do so. The heir in Philippine law is not the continuation of the personality of the deceased. It would also be inconsistent with the irrevocable character of acceptance or repudiation. Article 1043 Prerequisite of acceptance 1. where the institution. o The person inheriting must survive the decedent and must have capacity to succeed. 27 . provided for in Article 1054. devise or legacy is subject to a charge or condition to be performed by the minor or incapacitated beneficiary. If the legatee may accept or repudiate partially. the will of the heir to take the inheritance is made simultaneous with the death of the decedent.• Repudiation and acceptance – being essentially voluntary and free acts – violence. (no free disposal of his property) Minors and incapacitated persons • When judicial approval not required o Generally. o Acceptance.

When the heir renounces it for the benefit of one or more heirs o The act of renunciation. and collateral relatives within the fourth degree was left out from the Family Code. Article 1047 Acceptance by wife • Article 114 which provides that “the wife cannot. they have no power to repudiate. these are what make it similar to the natural or juridical person. and can be considered no longer in force. it can necessarily be inferred that he considers the property as his own. acquire any property by gratuitous title except from her ascendants. Article 1048 Article 1049 Article 1050 Tacit acceptance of inheritance 1. but not of all the heirs indiscriminately. 2. • Since these institutions may by their nature be of public interest. inasmuch as these organizations find their legal representatives of the State or the Government. donates. Approval of Government The approval required by the article must be given by the head of the department to which the public establishment belongs or is subordinate. separate from the mere manifestations of the governmental functions of the State. o Even if the renunciation is made in favor of all. an act of disposition. Donations made to induce her to commit marital infidelity may be prevented by the application of Article 1028 in relation of Article 739). • Individuals who may be selected as poor have the freedom to accept or repudiate the property or portion that may be given to them. descendants. Article 1045 Action by representatives • The law has taken for granted that the acceptance by their representatives will always be beneficial to the institutions. Article 1046 Public establishment • The term refers to organizations which have their own social and public purpose. disposes of the same without express acceptance. it will remain to be a cession. this.Institution of poor • The persons designated by the testator to determine the beneficiaries in an institution of the poor in general can only accept the inheritance. It is an act of disposition. the law has required judicial approval. • It does not refer to mere administrative organizations which do not have a separate existence as a legal entity. A provincial governor cannot be regarded as a public establishment and thus may accept and receive a testamentary devise in trust without the previous approval of the central government. When he therefore. and performs successive acts to realize it. parents-in-law. and thus endow it with capacity to succeed. without the husband’s consent. being made in favor of only one or more. but such persons are not the ones called by the law in case of intestacy. really involves a cession. while the repudiation may not. • The married woman. When heir sells. can now freely accept inheritance without need for the husband’s consent. 28 . or assigns his right: This is considered an acceptance because it involves alienation. • It is indispensable that the organization must have a distinct public service to fulfill. (A Filipina cannot be presumed that every donation or legacy in her favor hides an infidelity on her part. and no one can transmit anything that is not his own.

where he is a partner of the deceased. substitution. amount to acceptance. o Repudiation involves acts of disposition and alienation. collect credits. It is sufficient that repudiation appear in writing in an indubitable manner. Article 1051 Formality of repudiation • Repudiation must be in a public or authentic writing or one presented to the judge • Act of repudiation is more solemn than the act of acceptance o Repudiation makes the transmission of the right of succession ineffective. o Repudiation opens the way for other heirs. The excess shall be adjudicated to the person to whom it may pertain under the law. 29 . thus the law choose to favor the creditors. by themselves. as the Code could not have used the term “authentic” as a mere synonym or surplusage. or by intestate succession. a failure to signify acceptance or repudiation within 30 days after an order of distribution by the probate court (shall be deemed accepted) Acts not constituting acceptance • Where the law expressly mentions cases from which acceptance may not be inferred o Repudiation without consideration in favor of the persons to whom his share will pass in the absence of the heir repudiating o When the heir gratuitously renounces his part in favor of all the persons to whom the share will pass by right of accretion. though they necessarily affect the property of the deceased o When the heir continues possessing the property of the deceased after the death of the latter • Acts of mere administration and preservation do not. When the renunciation is in favor of all heirs indiscriminately for consideration: The repudiation made for a valuable considerations is not a renunciation at all. His co-heirs will gratuitously receive more property while his creditors will necessarily be prejudiced. Other acts of tacit acceptance o When the heir demands partition of the inheritance o When he performs such like acts which show the clear intention to accept o Under Article 1057. not only when made in favor of the co-heirs. Article 1052 Acceptance by creditors • Repudiation affects the co-heirs and his creditors. The law considers renunciation with consideration as an acceptance. etc. acts which by their nature require formalities. Authentic instrument • Authentic instrument refers to document distinct and apart from a public or notarial instrument. or co-ownership. • Authentic instrument refers to one whose genuineness is admitted or clearly proved. 4. • Where the acts which the heir has the right to perform without the character of an heir o When an heir acts as administrator of the estate (where he may be obligated to administer the property. producing thereby more violent and disturbing consequences which the law cannot permit by mere implications or presumptions. pay debts. etc) o Acts that the heir may perform in the interest of the firm. as the property of the deceased must not be abandoned o Keeping of documents o Harvesting of fruits of the estate o Deposit of jewels and other valuables in some institution for safekeeping o The inventory of the property o The repair of buildings. bring suits. and it is necessary that this calling of other heirs must be based on certainty.3. or of persons called to the inheritance by virtue of intestate succession or the right of accretion. but also when in favor of substitutes. • The acceptance shall benefit the creditor only insofar as it covers the amount of their credits. o Publicity of repudiation is needed for the benefit of the creditors and the public interest.

but willing to accept as testamentary heir in order not to contradict the will of the dead. once made. Act of repudiation prejudices the claims of the creditors. Nature of creditor’s acceptance • The acceptance of the creditors does not annul or revoke the repudiation made by the heir. Judicial authorization must be obtained before the creditors may accept for the debtor 4. (e. where a person may not desire to succeed by intestacy.g. the heirs cannot inherit. the vices which annul consent are mistake or error. • Exceptions: o When the acceptance or repudiation suffers from any of the vices which annul consent (Article 1330. relative is alive. If he repudiated. if dead. The error must be based on facts and circumstances which the heir could not have known notwithstanding due diligence on his part. There must credits existing against the heir who repudiates (it is not necessary that there be many creditors. Article 1053 Article 1054 Article 1055 Heir in two capacities • Repudiation of express will includes that of the presumed will: When an heir is such by will and by law. o When an unknown will appears. (This is by reason of delicacy. • When the heir-debtor is solvent and has sufficient proportion of which the creditor may recover what is due them. and he repudiates the inheritance as a testamentary heir. it cannot be inferred that he repudiated.Requisites to entitle creditor to accept for the heir 1. affects either the perfection of rights in the heir or the vesting of rights in others. can heirs of A inherit from X? – depends if A accepted or repudiated. (X – A (heir). the consent is vitiated by mistake) • When error refers to the principal conditions of the thing. Effect of mistake • When error refers to the substance of the thing. • The repudiation is simply rescinded to an extent sufficient to protect the interest of the creditors. (The act of repudiation reveals that the heir does not appreciate the will of the testator and thus does not deserve to likewise become a succession in intestacy). • When the inheritance is useless to the heir who repudiates. There must be a repudiation by the heir-debtor in legal form. in the sense that he would receive nothing because the debts of the estate exceeds its assets. a repudiation valid in law 2. A died. If A did not accept. intimidation. he is considered to have repudiated the inheritance also as legal heir. one will suffice) 3. as long as he does not know that he is a Voluntary Heir. To allow the heir to change his mind and revoke his acceptance or repudiation would lead to confusion and serious results. If X represented as Compulsory Heir. violence. the acceptance or repudiation will likewise be without effect. undue influence or fraud). When repudiation is not prejudicial to creditors • When creditors become such after the repudiation. Effect of violence or intimidation 30 . else.) Article 1056 Irrevocability of acceptance • Acceptance or repudiation. • Repudiation of the presumed will still leaves the express will open to respect: When the heir repudiates as a legal heir. can he accept as Voluntary Heir? – yes. occurring before the act of acceptance for repudiation. the consent given has no effect. from risks and other circumstances. errors arising from false hopes or fears. These are errors in the appraisement. he may later on accept as a testamentary heir.

Tasiana Ongsingco. Upon Francisco’s death. spouses executed a public document agreeing to separate as husband and wife and also renouncing her right to inherit any other property that may be left by her husband upon his death. Intimidation works internally upon the mind of the heir forcing him to accept or repudiate. The right of ownership of the lawful wife of a decedent who had died before the NCC took effect became vested upon his death and is so because of the imperative provision of the law which commands that the right of succession are transmitted from the moment of death. Trial Court ruled in favor of Uson. The new right recognized by the NCC. Appearance of unknown will • When the acceptance or repudiation may be impugned o When the will institutes a person other than the one who has repudiated or accepted (the person having no right in the inheritance cannot accept or repudiate the same) o If the will grants additional legacies or revokes some (the acceptance or repudiation may be revoked as the acts were made in the absence of the new charges or where the legacies are revoked) • When the acceptance or repudiation may not be impugned o When the unknown will only clarify doubtful clause o When the unknown will modifies insignificant details of a previous one. as consent is non-existent. Uson his wife. Yet this is so only when the new rights do not prejudice any vested or acquired rights of the same origin. filed a petition for the probate of her will and after probate. Issue: The doctrine in Guevarra vs Guevarra which held that he presentation of a will for probate is mandatory and that the settlement and distribution of an estate on the basis of intestacy. The relationship between the children of the first marriage and Tasiana has been plagued with several court suits and in order to put an end to all these litigations a compromise agreement was entered by and between the heirs of Francisco by the first marriage and the heirs of Francisco by the second marriage. thereon. Jose De Borja. While Article 2253 of the NCC provides that the rights which were declared for the first time shall have retroactive effect even through the event which gave rise to them may have occurred under the former legislation. 31 . Issue: whether the provisions of the NCC regarding the successional rights of illegitimate children which were declared for the first time be given retroactive effect? Held: No. in favor of the illegitimate children of the deceased cannot be asserted to the impairment of the vested right of the lawful wife over ht elands in dispute. such provision should not be given retroactive effect. was appointed co-administrator of the testate estate of his mother while the widower allegedly took into himself a second wife. • When the institution depends o Upon the fulfillment of a suspensive condition which is not realized o Upon the birth of a posthumous child who is not born or is born dead Article 1057 USON VS NEBRADA 92 PHIL 530 Facts: Faustino Nebrada upon hi death left 5 parcels of land and leaving his only legitimate heir. Tasiana instituted testate proceedings and was appointed special administrator. upon the death of his wife. Other causes of revocation • The acceptance or repudiation by a person who is not entitled to the inheritance has no legal effect. or stranger) • The fraud must be serious and must consist of insidious words or machinations without which the heir would not have accepted or repudiated the inheritance. legatee. therefore ordering del Rosario to restore the ownership and possession of said lands. was appointed executor and administrator. However. Violence refers to the external acts imposed upon the heir to accept or repudiate.• • • The act of repudiation or acceptance through violence or intimidation is without effect. Uson claimed that upon Nebrada’s death. Effect of fraud • The fraud must be practiced by a third person (creditor. Del Rosario claimed that before Nebrada’s death. de Rosario a common-law wife illegally took possession of the said parcel of land. co-heir. DE BORJA VS DE BORJA 46 SCRA 579 Facts: Francisco De Borja.

of course. even after the actual extent of such share is not yet determined until the subsequent liquidation of the estate. morals and public policy. When Fortunata died. there is no legal bar to a successor disposing his or her hereditary share immediately after such death. The right of the heirs to the property of the deceased vest in them even before judicial declaration of their being heirs in the testate and intestate proceedings. It cannot be said that the disputed contract deals and interferes with properties in Custodia legis because the reasonable interpretation that must be given to it that contemplates and provides for the partition only of such property as may be adjudicated to Modesto if when he is declared to be an heir of his deceased wife. the effect of such alienation is deemed limited to what is ultimately adjudicated to vendor heir. BONILLA VS BARCENA 71 SCRA 491 Facts: A civil action to quiet title over certain parcels of land was instituted by Fortunata Barcena. If this is so. Bough and Restituto instituted the present action to secure judgment ordering Modesto to divide the properties left by his wife. It is well settled that rights by inheritance are acquired and transmitted upon the death of the decedent. actual or eventual. As a hereditary share in a decedent’s estate is transmitted or immediately from the moment of death. It is the present action that should not be considered strictly as one for partition but only as an action intended to determine the right of the parties under the terms of the contract. her claim on right to the parcels of land in litigation was not extinguished but was transmitted to her heirs upon her death. the claims of the partition to be made in due course. and they cannot be deprived of their right thereto. it must necessarily follow that it is perfectly legal for an heir to enter into a contract of the nature of the document in this case.When the decedent left a will is against the law and public policy is not applicable when the clear object of settlement was merely the conveyance by the heir of any and all their individual share and interest. the heirs become the absolute owners of the property subject to the rights and obligations of the decedent. Issue: whether the heirs may be parties in interest who may substitute the deceased in an action to quiet title over certain parcels of land? Held: Article 777 of the Civil Code provides that he right to the succession are transmitted from the moment of death of the decedent. whether such right be pure or contingent. dismissed the case on the basis that a dead person cannot be a real person in interest and has no legal personality to sue. that the contract would be effective only if and when he is really declared an heir and only as regards any property that might be adjudicated to him as such. however. in the estate of the decedent and not the distribution of the said estate. Of course. From the moment of death of the decedent. The heirs have acquired interest in the properties in litigation and become parties in interest in the case. BOUGH VS MODESTO 47 OG 97 9 3013 Facts: On March 4. that is through the probate court. The moment of death is the determining factor when the heirs acquire a definite right to the inheritance. 1936 Bruno Modesto. BORROMEO-HERRERA VS BORROMEO 152 SCRA 171 32 . except as provided for by the law. There is therefore no reason for the court not to allow the substitution as they are now the real parties in interest in the case at bar. in his defense alleged that the ____ had failed to comply with the terms and conditions specified in the contract and that the said contract was not contrary to law. Counsel for the plaintiff asked for the substitution of her minor children and her husband. The Court. the object of which is Modesto’s inheritance is valid and binding between the parties? Held: The contract is valid. in the manner and form provided in the private document. Issue: whether the contract. the understanding to be. Modesto. ____ Bough and Restituto Anapol executed a private document whereby Modesto agreed that he would share with Restituto Anapol and Bough whatever property he might inherit from his deceased wife. A motion to dismiss the complaint was filed by the defendants on the ground that Fortunata is dead therefore has no legal capacity to sue. It was provided in such document that the properties were to be divided and proportioned 1/8 each provided that Restituto pay the expense to be incurred in connection with the litigation that Modesto was facing.

Facts: Vito Borromeo. happening of a resolutory condition) Even if will is inoperative. but the same was found to be a forged document. 2. Failure by the deceased to do so. The testate proceedings was converted into an intestate proceeding as several parties filed their claims alleging that they are the heirs of the intestate of Vito Borromeo. Fortunato attached a waiver of hereditary rights of 5 of the deceased heirs and the latter having agreed to designate their share to the former. On April 25. • Testamentary succession is preferred over intestate or legal succession. Legal and Intestate • • When there is no valid testament expressing the decedent’s will. Article 960 (5. These provisions will also take effect. filed a motion praying that he be declared as one of the heirs of the deceased. even in the presence of a will. Jose Junguera filed with the CFI Cebu a petition for the probate of a one-page document as the last will and testament left by said deceased. Testamentary Article 779 Testamentary succession preferred • One of the most fundamental principles in the law of succession is that the will of the testator. the law enters and disposes of it for him by assigning it to his nearest relatives. The Court also ordered that the assets of Vito be divided in 4/9 and 5/9 groups and distributed equally. or 3. a widower and permanent resident of Cebu died without heirs but leaving properties in Cebu. On April 10. Nor does such properties have the character of a future property because the heirs acquires a right to succeed from the moment of death of the deceased until the heirs enter into possession of the hereditary property. • The law gives the deceased the right to make his last will and testament. legal or Intestate. NCC: Succession may be: 1. In his motion for reconsideration. Held: The prevailing jurisprudence on waiver of hereditary rights is that the properties included in an existing inheritance cannot be considered as belonging to third persons with respect to the heirs who by fiction of law continue the personality of t former. taking for granted that he would have made the same assignment if he had a will. there may have been legal effects to the rights of others Deceased without a will • The most general and simplest form of intestate succession. expressed in the form required by the law and exercised within the limits laid down by the law. if such will does not validly dispose of all the property of the deceased. must be recognized as the supreme law in the succession. Testamentay 2. alleging that he is an illegitimate son and entitled to receive a legitime like all other forced heir. E. 1969 the trial court invoking Article 972 of the Civil Code issued an order declaring nine persons to the exclusion of others as intestate heirs of Vito. The right is vested although conditioned upon the adjudication of the corresponding hereditary partition. Kinds of Succession Article 778. Issue: whether hereditary rights may be waived before there has been acceptance or repudiation of an inheritance which the heir intends to transfer. 1969 Fortunato who had earlier claimed an heir under the forged will. but the acceptance in any event acts form the moment of death in accordance with the provision of the Civil Code. 33 . then his property must be distributed according to the provisions of law on intestate or legal succession. Mixed 1. The heirs therefore could waive their hereditary rights even if the order to partition the estate was yet to be issued.

if the condition happened. unless the right of accretion or substitution obtains. When the event upon which a conditional legacy depends does not happen. executed by a testator having full legal capacity and under the conditions and requisites imposed by law. When will losses validity • The difference between a void will and a will that later lost its validity lies in the fact that the first refers to a will that has never been valid. as to the whole or part of the estate. • No intestacy. • “loss of validity” does not refer to a will revoked by a subsequent valid will. a disposition in favor of a definite class or group of persons shall be valid”. The property or portion which should have passed to them. the legacy passes to the persons named by law to succeed the testator. Will dispose of property partially • Legal succession will take place only as to that part of which the testator has not disposed. • “Validity” must be interpreted as “efficacy”.e. or legatee cannot be determined. devisee or legatee. is thus left in the sphere of intestate succession. However. dispositions during testator’s last illness in favor of a priest. A person who dies leaving a void will dies without a will. but a will made ineffective by a second will without invalidating the first. (e.• This excludes the cases when a person dies with a will that lacks the legal requisites or a will the whereabouts of which are not known. alone does not invalidate the will (See Article 841). 34 . ipso facto. It however may los its efficacy in a later time. and the remainder of the property shall pass to the legal heirs. see Article 1027) • When the identity of the person designated as an heir. If a substitute has been appointed or the right of accretion exists between the conditional heir or legatee or devisee and another. which sets aside the institution of the heir. the property assigned to him is left without any person to inherit. • Dispositions according to Article 846 is void. Incapacity of heir instituted The instituted heir being incapable. A will can be said to be void if there exists any cause of disallowing it. and the remainder of the property shall be carried out. • Absence of institution of heirs includes cases where the institution of heirs is void. Will does not institute heir • A will which does not contain an institution of an heir (taken generally. • It includes cases where the dispositions of certain property or portions do not become effective because they are void according to law. Predecease or repudiation • Intestacy will not follow from the prior of the heir or his renunciation of the inheritance o If the testator has provided for substitution or o Where there is a co-heir in whose favor the right of accretion exists. the property intended for such person must be distributed as in case of intestacy. When will is void A void will has no legal existence. devisee. (Article 846 provides “Every dispositions in favor of an unknown person shall be void. is valid and never ceases to be such. there will be no intestacy although the suspensive conditions arise. A will. • Intestacy. legal or intestate succession takes place as to the legacy. The property or portion of the conditional heir who does not succeed passes to the substitute or co-heir. the testamentary dispositions made in accordance with law shall be carried out.g. while the second refers to a valid will which later lost its validity. i. Other causes of intestacy • Happening of the resolutory condition. and including devisees and legatees). and thus gives rise to intestate succession. • In such cases. Non-fulfillment of condition • The condition referred to is suspensive and not resolutory. as suspensive conditions rise to rights and his non-fulfillment prevents the acquisition of such rights by the persons conditionally instituted. that is null and void ab origine. unless by some event or circumstance his identity becomes certain.

The non-compliance or the impossibility of complying with the will of the testator. but a real case of contractual succession. not only an exception in the prohibition in Article 1347. made by a competent testator in the form prescribed by law. in its own nature. which recognize oral or nuncupative wills). devisee or legatee (under Article 885) is instituted up to and until a day certain. 3. which disposition is of such nature as to take effect at the death of the testator. Preterition – the annulment of the institution of the heir. and which is. Definition Article 783 Definition of Will • Roman law: The legal declaration if a man’s intentions. of property over which he has legal power of disposition. Mixed succession happens where there is testamentary succession as to the part validly disposed of. a legal or intestate succession. • Article 130 Article 1347 Article 754 Article 84. • Tolentino: A will is a personal. WILLS A. and at the same time. (This definition is criticized in other jurisdictions. • Popular sense: A disposition. as to the part not validly disposed of. or merely provides for the payment of debts which the 35 . which he will to be performed after his death. 4. which affianced persons are authorized to execute before the celebration of the marriage. ambulatory and revocable during his life. Mixed Article 780 • • Testamentary succession and intestate or legal succession are compatible with each other. revocable and free act by which a capacitated person disposes of his property and rights and declares or compiles with duties to take effect after his death. Non-dispositive Writings • American law: Disposition of property is not an essential characteristic of a will. distribution through legal succession.• • Upon the expiration of the term or period of the institution. • Generally accepted definition: A will is an instrument by which a person makes a disposition of his property to take effect after his death. o An instrument has been held valid as a will. stipulating conditions for the conjugal partnership with respect to present and future property. but not executed in the form of a will. not a legatee or devisee – right of usufruct. The donation with respect to future property in the marriage settlements is in reality a disposition mortis causa. FC TESTAMENTARY SUCCESSION II. There can be an heir. which simply names an executor or administrator of the estate. or to which no heir is designated by the testator. provides for an exceptional case in which succession may be conferred by a contract. when the heir. Contractual • The marriage settlements. It constitutes. solemn.

inasmuch as that which has been previously expressed has not yet taken effect. o A will may be limited to extra-patrimonial dispositions provided by law (e. It is a free act. its dispositions which are provided by law (e. Not necessarily gratuitous: A will is not necessarily an act of liberality or generosity. the disinheritance cannot be given effect. In some cases. fraud or deceit (individual act) 3. It disposes of property 4. It is a unilateral act 8. or the influence of fear. with the formalities prescribed by law to control to a certain degree the disposition of his property. without violence. Article 839 (3). • Unless the will is probated. although the instrument may be considered as a will. or takes effect upon the death of the testator 9. 3. if it was procured by undue and improper pressure and influence. It is a purely statutory right (constitutional) Revocability: Up to the moment of death. Philippine Civil Code: The concept of a will is limited to a disposition of property to take effect upon and after death o A will is a specie of conveyance whereby one person is permitted. may consist merely of moral advice. The inheritance may be so burdened with legacies that all the benefit to the heir is nullified. if it was executed under duress. if the testator was insane. at the time of its execution. and the disinheritance is expressly required to be made in a will (See Article 916) • A valid disinheritance is in effect a disposition of the property of the testator in favor of those who would succeed in the absence of the disinherited heir.• law would require the personal representative to pay even if the testator died without a will is held similarly. acknowledgment of natural child) can be given effect even without probating the will. in some cases. Rule 76: Grounds for disallowing will – the will shall be disallowed in any of the following cases: 1.g. or directions as to the conduct of the heirs and the education of the children (which have no juridical importance). such as in legacies in payment of debt. or of some other person for his benefit. Exclusion of heir • The law permits a testator to disinherit a compulsory heir for any of the causes provided by law. it does not have to be probated. o The dispositions. that it has to be probated (See Article 838). and therefore. o When there is no disposition of property. Characteristics Article 783 Characteristics of Wills 1. to take effect after his death.g. if not executed and attested as required by law. 36 . 4. It is an act mortis causa. It is essentially revocable 5. o It is only when the will disposes of property either directly or indirectly. It is formally executed (formal art/ solemn art) 6. the mind of the testator may still change. on the part of the beneficiary. 2. or otherwise mentally incapable to make a will. or the acknowledgment of a natural child. The testator has testamentary capacity (essential requirement) 7. It is a purely personal act 2. there may even be no intent of liberality. B. or the form and manner of the funeral of the testator). (4) Article based on Rule 76 of the Rules of Court Section 9. disposition of the patria potestas of the widow in case of remarriage. revoke what he has already expressed as his will and substitute therefor his new wishes or desires. or threats . patria potestas.

Civil interdiction A person under civil interdiction can make a will. This construction. Revocation • An act of the testator • Presupposes a valid act • Takes place during the lifetime of the testator • The testator cannot renounce the right to revoke 2. sustains the view that the required age is reached at the commencement of the day preceding the anniversary of the birthday. Wills by their nature are ambulatory and operative until the death of the testator. he can make a will. be it an intrinsic or extrinsic defect • Invoked after his death by his intestate or compulsory heirs • Nullity of a will can be disregarded by the heirs through voluntary compliance therewith. Article 828 Revocability of wills • Revocability is an inseparable quality of every will.5. • A will may be revoked at pleasure. and he did not intend that the instrument should be his will at the time of fixing his signature thereto. Article 796 Capacity to make a will • The law presumes capacity to make a will • Mere weakness of the mind or partial imbecility from disease of body or from age does not render a person incapable of making a will. terminating the potential capacity of the will to operate at the death of the testator. Article 798 Article 777 Article 818 37 . 1. is more in accord with the liberal policy of the law to presume capacity to make a will. Spendthrifts When a spendthrifts or prodigal is under the guardianship. further. Nullity • Proceeds from the law • Inherent in the testament. • The Anglo-American __ should be followed in Philippine jurisprudence since the present law on the capacity of the testators of Anglo-American origin. there being no disqualification provided by law. Revocation and nullity distinguished Revocation and nullity of wills have the same purpose of depriving a last will of legal effect. if the signature of the testator was procured by fraud or trick. Article 797 Computation of age • The law requires the testator to be 18 years of age or over • The Anglo-American jurisprudence. Corporations never leave orphans or widows to mourn at their funeral. and probate courts have no jurisdiction over corporate properties. in the absence of statutory provisions on the manner of computation. revoked or superseded at any time. Denial of probate A will should not be disallowed on dubious grounds. manifested by some outward and visible act or sign. Revocation is an act of the mind. • “Persons” as used herein means only natural persons. He is disqualified for dispositions of property only by act inter vivos but not by act mortis causa. symbolic thereof. It may be altered. and the interpretation given in the jurisdiction of origin should be observed here.

Article 818 was inserted in the New Civil Code. or the expression by two or more testators of their wills in a single document or text and by one act. Being so. A Joint Will is one where the same instrument is made the will of two or more persons and is jointly signed by them. 2. embodying the provisions of the Partidas. • The Partidas (Ley 35. A joint will. Scope of prohibition • The real prohibition in the Code refers to the execution of a joint will.Background of provision • The Fuere Real (Ley 9. inasmuch as such act does not constitute a delegation of the will or disposition. and constitute expressions of the will or disposition of the testator. or even on the same side but separated by a line between. • The law does not invalidate two distinct wills. Such wills are usually executed to make testamentary dispositions of joint property. Partida 5) prohibited the same because it might lead to the commission of parricide. • The third person entrusted to make the distribution does not make any disposition. 11. 6. Libro 3) allowed this kind of will between husband and wife. 3. and this is defeated if two or more persons make their wills in the same instrument. the expression of the will of the testator that is not subject to delegation. which are reciprocal in their provisions. • Article 669 of the Civil Code was enacted. • The testator has expressed his will by leaving specific property or sums of money in general to specified classes or causes. the provisions of which are reciprocal. may expose a testator to undue influence. A Will that its both joint and mutual is one executed jointly by two or more persons. independent of each other which are written on the same sheet of paper. Tit. if mutual or reciprocal. • To eliminate all doubts and to establish a definite policy. Concept of Joint and Mutual Wills 1. • The more mechanical act of drafting the will may be done by a third person. Article 785 Reason for provision The matters mentioned are testamentary in nature. The testator cannot substitute the mind or will of another for his own. and may even tempt one of the testators to kill the other. the other testator would have no document left containing his testamentary disposition. Tit. Article 787 38 . they cannot be delegated to a third person. 2. it is contrary to the revocable character of a will (if one testator revokes his will by burning the instrument. one on each side. Article 784 Prohibited Delegation • It is the making of the disposition. if they have no children. 3. but simply carries out details in the execution of the testamentary disposition made by the testator himself in his will. A will is a purely personal and unilateral act. Reasons for prohibition of a joint will 1. Article 786 No delegation • There is no delegation of the will or testamentary disposition in the cases contemplated by the article. and which shows on its face that the devises are made on in consideration of the other. Mutual Wills are separate wills of two persons. and making the prohibition more extensive.

or two or more things that meet such description. are admissible. Such oral declarations are inadmissible whether made before or after the execution of the will. in the present article. etc. and there are two or more persons that answer to such name. may be introduced for the court to view the matter in the same light and the point of view as the testator himself. Article 789 Kinds of ambiguity in a will 1. The object of the construction of a will is to sustain it if legally possible and not to seek flaws in the instrument and declare it invalid. Latent or intrinsic ambiguity: one which cannot be seen from a mere perusal or reading of the will. when the will names a person as the beneficiary of a gift. is itself void. and the instrument should receive the most favorable construction to accomplish the purpose intended by the testator. • The reason for the inadmissibility of oral declaration is that the lips of the testators have been sealed by death and therefore can no longer deny or affirm the truth of what witnesses may say he declared. one which will defeat and the other which will sustain the testamentary disposition. the doubt must be resolved in favor of the construction which will give effect to the will. When latent or intrinsic ambiguity arise 1. whose effectivity will depend upon the determination of the third person. C. written declarations made by the testator outside the will. • Testator’s Intent: The intention of the testator is the controlling factor in the juridical relations arising from the will. courts are not permitted to wrest it from its natural meaning in order to save it from nullity.. Effect of prohibited disposition • It is not only the delegation which is void • The testamentary disposition. and courts will not seek an interpretation that will nullify his will and any part thereof. • Interpretation that will give effect to the will: If the language used is reasonably susceptible to 2 different interpretations. where there is a misdescription of the beneficiary or of the thing given as a gift. • By implication. which is not permitted. 2. • Presumption: The presumption is that the testator intended a lawful thing. Testator’s declaration • the extrinsic evidence cannot include oral declarations of the testator. • Evidence of the state of his property. 39 . Patent or extrinsic ambiguity: one which appears upon the face of the instrument 2. besides the evidence of the circumstances surrounding the testator. Parol or extrinsic evidence • the Philippine Code. for the purpose of explaining or resolving a patent ambiguity. does not make any distinction between patent and latent ambiguities insofar as the admissibility of parol or extrinsic evidence is concerned. To admit such would create confusion and give rise to false claims. • Extrinsic evidence is admissible to show the situation of the testator and all the relevant facts and circumstances surrounding him at the time of the making of the will. rather than the one which will defeat it. Interpretation of Wills Article 788 Interpretation favoring validity • Substance over form: Substance rather than form must be regarded.Reason for the provision To delegate to a third person the power to determine whether a testamentary disposition is operative is in effect delegating the power to make the testamentary disposition. • When language ambiguous: When the language of the testamentary disposition is plain and unambiguous. It is thus necessary to interpret that intention rationally and in such manner as not to render ineffective the testamentary disposition. or a thing as the subject matter of such gift. the condition of his family. but which appears only upon consideration of extrinsic circumstances.

if possible. being usually prepared by one who is not learned in the law. or public policy that it cannot be given effect. be given to all words. where the circumstances surrounding the execution of the will indicate that the testator so intended. clauses.Article 790 Intent of testator paramount • The supreme law in succession is the intent of the testator. Prevention of intestacy • Where a will has been executed. • The words and phrases employed in such instruments should be interpreted according to their ordinary acceptation. Literal meaning • Respect for the will of the testator constitutes the principal basis of the rules which the law prescribes for the correct interpretation of all the clauses of the will.g. • Questions in court arising in connection with the execution of and compliance with the testamentary provisions shall be adjusted in harmony with the plain and literal meaning of the language of the testator. • Where 2 constructions are possible. Courts will give the broadest meaning to the words of bequest when it is necessary to do so in order to prevent intestacy. Article 792 Article 793 40 . • No part of the will should be discarded unless in conflict with some other part. emphasis being placed upon their accepted technical meaning. • It is only when the intention of the testator is contrary to law. the latter interpretation must be followed. • Words found in the first are to be construed with some strictness. • It is presumed that every word or clause was intended by the testator to have some meaning. Article 791 Effectivity of all parts • Effect should. or the meaning which they commonly have to a person in the situation of the one who used them. Interpretation of holographic wills • Holographic wills. • Words and provisions written in the will must be plainly construed in order to avoid a violation of his intention and real purpose. and the other giving effect to the will as a whole. will prevail over a literal translation which. • A translation submitted to the court. construed more liberally than ones drawn by an expert. • Words found in the second are to be interpreted liberally with reference to their popular meaning. the one disregarding a word or clause of the will. • The presumption against the intestacy is so strong that courts will adopt any reasonable construction of a will in order to avoid it. even though they may have different technical meaning. the reasonable and natural presumption is that the testator intends to dispose of all his property. Technical sense of the words • A distinction is made in interpretation is often made between a will drafted by skilled testamentary draftsmen (e. No word or clause should be rejected if it is at all possible to give a reasonable effect. lawyers) and a will prepared by persons who have no knowledge of the law. and provisions of the will. in which case that part will be enforce which expresses the intention of the testator. if they are not inconsistent with each other or with the general intent of the whole will taken in its entirety. morals. is not idiomatic. while word for word correct. made in accordance with the idiomatic usage of the language from which it is made. • All rules of construction are designated to ascertain and give effect to that intention. except where it clearly appears that his intention was other than that actually expressed.

properly acquired thereafter is transmitted only when it expressly appears in the will that such is his intention. and by lucrative title. • The ignorance of the testator is presumed by law. Issue: whether the court may depart from the strict wordings of the will to give effect the true intention of the testator. ordinary masses for the repose of my soul and those of my parents. Simeon Serrano. I repeat and insist that my heirs shall execute and comply with this request without fail. • But when the testator. the legacy is void. that the thing belonged to another. the legacy or device is void. Article 794 Intention of testator • When the testator does not state the extent of the interest he gives in the legatee or devisee or the property transmitted. which is of American extraction). may manifest his intention to convey a less interest. he may expressly convey a larger interest. to deliver to the petitioners their respective shares as a legacy. Hence. and under Article 929. the court may depart from the strict wording and read a word in a phrase in a sense different from the strict wording 41 .Observations on article • The will of the person transmits only properly owned by him at the time of the making so such will. the conflict is irreconcilable. but subsequently it I is acquired either by himself or by an heir. to my nephews and distributed in the following manner xx. and at the hour of his death he will insist that his heirs comply with all that I have ordered. • If the testator did not know at the time the will was made that the thing belonged to another. for these are the testamentary disposition contemplated in the Code of Civil Procedure. and I desire him to comply with the obligation to give and deliver to the parish priest xx a sufficient sum of money necessary for a yearly novena. or to another third person. it is understood that his whole interest passes. no more and no less. I desire and hereby name Leandro Serrano. Subsequent change of ownership • if the testator did not know. Held: where the testator’s intention is manifested from the context of the will and surrounding circumstance. the trial court ordered the executor of Leandro. no claim was made by the legatees in said will. but is obscure by inept and inaccurate modes of expression. my grandson. ASCUETA 49 PHIL 33 Facts: upon the death of Maria Solla. • If the subsequent change of ownership transferred the thing to the very person to whom it was being given as a devise or legacy. husband and children and other relatives. should be construed (to save the law from being inconsistent with itself) as referring only to devisees and legacies. the language will be subordinated to the intention. • The grafting of the provision (taken from the Coe of Civil Procedure. the intention of the testator will be followed. as my universal heir xx. and in order to give effect to such intention. In such case. SOLLA VS. she left a will which provides for the following: “I also desire and order that there be given in the way legacies to my brothers and sisters. the present article conflicts with Article 930. • Even with the present construction. It contravenes the concepts of heir and of inheritance in the Code. • This is contrary to principles expressed in other provisions of the Code. Article 930 Things belonging to another • Article refers to a legacy or devise of a determinable and specific thing totally belonging to a stranger at the time the will was made. at the time of making the will.” The possession of the property left by Maria was immediately taken by Leandro Serrano and continued in possession until the latter’s death. under Article 794. the devise or legacy becomes valid. During the lifetime of Serrano. devisee or legatee.

It is not the intention of the testator or attesting witnesses that matter but the intention of the legislature. • As vested rights are not permitted to be taken away without compensation and due process of law. because it is at this time that the rights are transmitted to the heirs. the validity of the execution of a will is controlled by the statute enacted subsequent to the execution and prior to the death of the testator. or supply a defect caused by a failure to comply with some of them. and by doing so does not interfere with the rights of the individual to dispose of his property. It clearly appears that it was Maria Solla’s intention and the letter should comply with her pious orders and that she did not mean her orders concerning her legacies. the law at the time of testator’s death will apply. o When a person fails to satisfy the statutory requirements as to execution the document will be denied probate. both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of the testamentary provisions. • Given in the present article. the instrument cannot stand as a valid will. does not affect the operation of the will. 42 . These technical mandates must be complied with. Law on intrinsic validity • Intestate and testamentary succession. o When a person omits to perform some prescribed act. • The law may be changed after the will has already been made. although the omission may be accidental and contrary to his intentions. shall be regulated by the law of the person whose succession is under consideration. whatever may be the nature of the property and regardless of the country wherein said property may be found. it follows of necessity that if the will or any gift in it was invalid when the testator died. or any gift in it took effect on the death of the testator. As to time of execution Article 795. Law governing form Compliance with Statute • The legislature has the power the power to prescribe the formalities to be observed in the execution of a will. in the interpretation of wills. This.on that which is ordinarily attributed to it and for such purpose alter the language of the will. changing the requirements for wills. • The rule that the intention of the testator must govern. • All the formalities required by the stature are of equal importance and the courts have no discretion to dispense with them. • The place of execution has no effect whatsoever upon the validity of the provisions of the will. D. changing the rules respecting the form of the instrument. cannot constitute a deprivation of property without due process of law. etc. 1. such as restricting its application on supplying the omitted word or phrase. In such case. has no retrospective effect. the rights of the devisee or legatee cannot be divested by any law passed afterwards. no subsequent state can cure the defect. however. • If the will was valid. however. does not apply to their execution. • Parol or extrinsic evidence is not admissible to show that a decedent intended to execute his will according to all the formalities prescribed by statute. and before the death of the testator.. or for the validity of any gifts by them. NCC Law on formal validity • The law governing the execution and effect of wills may be amended by the legislature subsequent to the death of the testator. • As there is no vested right in the heirs before the death of the testator. Objective of formalities Liberalization of the manner of the execution of wills with the end in view of giving the testator more freedom in expressing his last wishes but with sufficient safeguards and restrictions to prevent the commission of fraud and the exercise of undue and improper pressure and influence upon the testator. It is the law at the time when the succession opens which must determine the intrinsic validity of the provisions of the will.

intimidation. writing. notarial. dating and signing it by his own hand. • Matters bearing upon the execution. and Borarull): a. Morales. there is no guaranty as to the capacity of the testator b. which may never be known in case of immediate death of the testator. mystic. and the law of the place of the performance shall govern its fulfillment. and not by the provisions of the Civil Code. 2. their national law shall be applied o If still not so. he may execute what other codes call public. interpretation. without the attestation of any third persons. the law of the place of perfection of the obligation shall govern its essence and nature. b. secret or closed will. or undue influence. They may not be taken judicial notice of except when said laws are already within the actual knowledge of the court and they have been actually ruled upon in other cases before it and none of the parties concerned do not claim otherwise. • Remedies. Performance and enforcement • Matters connected with the performance of contracts are regulated by the law prevailing the place of performance. it may not faithfully express the will of 43 . it is simple and easy to make. Buron. Sanchez Roman.Planiol. the testator may either divulge its contents or keep them secret as he may please. convenient for those who have no means to employ lawyers or notaries. Validity and effect of obligations • The Code fails to mention which shall govern the validity and effects of the obligations • Flore’s doctrince: o The designated by the parties shall be applied o If there is no stipulation on the matter. o If these places are not specified and they cannot be deducted from the nature and circumstances of the obligation. and the statute of limitations.devisees. this c. depend upon the law of the place where the action is brought. then the law of the domicile of the passive subject shall apply. Advantages and disadvantages Advantages (Manresa. or legatees. and thus. admissibility of evidence. Article 810 Holographic Will defined • One executed by the testator himself. or who are timid and want to read and reread their wills before signing them. Comas. or who have only very little property to dispose of. • In the execution of the holographic will. Valverde): a. Foreign law has to be proven Foreign laws have to be proven like any other fact in dispute. The principle is embodied in the transitory provisions of the present Code (Article 2263). it induces foreigners in Disadvantages (Scaevola. As to place of execution Article 17 Execution of contracts • A contract executed in a foreign state should be tested as to its formal validity by the laws of that country. there is no protection against violence. and validity of a contract are determined by the law of the place where the contract is made. and the parties are of the same nationality. Foreign judgments Litigants by mutual agreement cannot compel the courts to approve of their actions or permit the personal relations of citizens of the Philippines to be affected by the decrees of foreign courts in a manner which Philippine government believes to be contrary to public order and good morals.

The view of De Buen is more acceptable. expresses his apprehension of death. Date of instrument • The law does not require that the will be completely executed on a single day. so long as the designation leaves no room for doubt as to the exact date (e. d. Christmas Day) • The validity of a holographic will is defeated by the fact that part of the date is printed. because of failure to comply with the requirement that it must be wholly written by the testator. False or erroneous date 44 . • If the writer of the letter addressing himself to a friend. • The day and month may be indicated by implication. and disposes of his property in the same act. it can be easily concealed. the will remains valid but the insertion is void. at one time. or is thinking of instituting a particular individual as his heir. but the intent to dispose mortis causa must appear clearly in the context. for the same reason. e. if it is written. then the insertion becomes part of the will. • In case of insertion o If the insertion was made after the execution of the will. o If the insertion made by a third person is made contemporaneous to the execution of the will. there is a valid holographic will. dated. but merely a project.jurisdiction to set down their last wishes. and signed by the writer. • The exact date. o If the insertion after the execution of the will was with the consent of the testator. When testator is blind • Valverde and Caslan: A blind person cannot make a holographic will. Letters as wills • A letter which is not for the sole and special purpose of manifesting the last will of the writer cannot be considered as a holographic will. there is no will. it guarantees the absolute secrecy of the testamentary dispositions the testator due to faulty expressions. a blind person can make such will if he has the general testamentary capacity. such insertion is considered as not written. even if he can write with ordinary characters • De Buen: There being no prohibition in the law. and the entire will become void. but a will in the form of a letter). but without the consent of the testator. Material to be used The material on which the will is written is not important Form and intent • There is no particular form required by law for holographic wills.g. because no witness or public official intervenes in its execution. but merely states that he is contemplating to leave his properties to another person. They may be in any form. because the validity of the will cannot be defeated by the malice or caprice of a third person. • The intention to make a will may appear expressly or it may be inferred from the terms of the instrument. then the will is void because it is not written entirely by the testator. month. and year on which the will was made must be indicated therein. otherwise it is void for want of an essential requisite. according to Tolentino. and in the same ink. • If the writer of the letter does not make any definite testamentary disposition. (it is not a letter containing a will. o If the insertion after the execution is validated by the testator by his signature thereon. it can be easily falsified by expert forgers. because the unity of the act is not a requisite for this form of wills. c. Written entirely by testator • The most essential and characteristic requisite of a holographic will is that it must be entirely written by the hand of the testator.

NCC provides that the national law of the deceased shall apply. A date written subsequent to the writing of the will. may subsequently complete it by dating it properly. provided that such proof. filed and recorded by proper CFI (RTC) in the Philippines. because he true date of execution cannot be determined on the will itself. It cannot be assumed that the Code places the Filipino citizen in a worse position than the alien in relation to Philippine Laws. Law on intrinsic Validity • The provisions of Article 815 to 817 refer to the formal validity of wills executed by persons outside their own state or country. which may even be extrinsic. the will can be probated in the Philippines. • The place of execution does not affect the intrinsic validity of the contents of the will. Article 815 Compliance with the Code • The article follows the general rule expressed in Article 17. and a date placed on the will long after the signing must be considered a false date. incomplete for want of date. when there are other statements or material elements in the will which fix the date with certainty. or a voluntary falsity as to the date of the will. The date must indicate on which the will was perfected. according to the laws of such country. is not a false date. Article 16. • A mere error in the spelling of the name does not invalidate the signature. • The signature as habitually written cannot be substituted by a symbol or a seal. and nullifies the will. The intentional statement of a false date.• • • • A simple involuntary mistake as to the correct date. Article 816 Rules of Court • Under the Rules of Court. The court may allow proof of the true date. Location for signature The signature must be at the end of the will (inferred from Article 812) Time of signing • The signature must be affixed by the testator on the day the will is written and dated: but the will can be signed even long after the testamentary disposition have been written. Witness to holographic will Signatures of witnesses to a holographic will does not invalidate the will. Article 817 Alien’s Will in the Philippines If an alien executes a will in the Philippines. not in conformity with our law. even in a foreign country. • There must be a correlation between the signing and the date. One making a holographic will. Filipinos cannot execute a valid joint will. can have a basis in the will itself. may be allowed. Signature of the testator • The signature required for holographic wills is not the simple writing of the name and surname of the testator. is equivalent to the inexistence of the date. does not invalidate the will. NCC • The Code did not mean to invalidate the will of a Filipino. • It is his name written by him in his usual and habitual manner. • With respect to the intrinsic validity of the provisions of the will. • Article 819 provides an exception to the rule contained in Article 815. which is the date on which the will was actually written. executed in a foreign country. but in conformity with the law of his own state or country. wills proved and allowed in a foreign country. when it is made in conformity with our law and not in conformity with the law of the place of execution. • The probate of the will in the foreign state or country must be proved in the same manner as any other foreign judgment. but will be disregarded as mere surplusage. 45 .

and his heirs will then inherit by intestate succession. the due execution of the will has not established. father Sanchio Abadia. ABADIA 50 OG#9. the NCC should apply wherein it permits holographic wills because such was the law enforced at the time of death of Father Abadia. Enriquez contended that. who is abroad. which was prohibited at the time it was executed. The laws of a foreign jurisdiction do not prove themselves in our courts. the said will was known to be a holographic will.) Issue: whether the will of Giberson can be probated in the Philippines despite the fact that there was no showing that the will was probated in the place of execution? 46 .000 who thereafter filed a petition to probate the will. However. parish priest of Talisay executed a document purporting to be his last will and testament. these requirements of the law were not met. IN RE WILL OF REV. in addition. No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time alleged will was executed. Spring. During the hearings. Issue: whether the validity of the form of the will depend on the law enforced at the time it was presented for probate? Held: The validity of a will as to form is to be judged not by the law enforce at the time of the testator’s death or at the time the supposed will is presented in the court for probate or when the petition was decided by the court but at the time when the instrument was executed.Article 818 Article 819 Exception to the general rule • General rule: A will may be made by a Filipino. such laws must be proved as facts. The Courts are not authorized to take judicial notice of the laws of the various states of American Union. ESTATE OF GIBERSON 48 OG #7 PAGE 2657 Facts: An action to probate document was filed alleging it was the will of Illinois citizen Giberson and was executed in California. Issue: whether the Courts of this jurisdiction are authorized to take judicial notice of the laws of the various states so the American Union? Held: The law of foreign jurisdiction do not prove themselves in our courts. (California law requires that the will must be probated in the place of execution before it be probate din the Philippines. • Exception: A joint will is against the public policy of the Philippines. 1946 leaving Andrea Enriquez as legatee to his properties with an estimated value of P8. and no subsequent law with liberal requirements as to execution should be allowed to validate a defective will and thereby divest the heirs of their vested rights in the estate by intestate succession. West Virginia by Hix who was resident of that place and was governed by the laws of West Virginia. Such laws must be proved as facts. 1923. in accordance with the formalities prescribed by the law in the country where the will is executed (Articles 17 and 815). when one executes a will which is invalid for failure to obscure and follow the legal requirements at the time of its execution then upon his death he should be regarded and declared as having died intestate. P 4185 Facts: September 6. Some cousins and nephew of the deceased filed an opposition. Giberson died in UST concentration Camp in Manila. FLEUMER VS HIX 54 PHIL 610 Facts: Fleumer alleged that the will was executed in Elkins. The Courts of the Philippines do not authorize to take judicial notice of the laws of the various states of the American Union. In the case at bar. The general rule is that the legislative cannot validate void wills. By party of reasoning. son of Giberson opposed the proceeding claiming that it is void because it does not reflect the true intent of the deceased and the same was not executed according to the law. He died on October 2.

The CA reversed the ruling of the trial court. another petition for probate of the same was filed but was denied on the ground that it is a joint will. executed a joint will and testament in the local dialect. and collation 47 . Issue: whether the testamentary heirs of Gervalia have rights even if the will was jointly made? Held: No. being married to Potot. Issue: whether the will of Bernabe maybe allowed probate. unless some other valid will is shown to exist in favor to the latter or unless the testamentary heirs is the only heir to the wife. Disease as a physical weakness alone does not affect the mental capacity of the testator. instituted the other as the Universal heir in their respective wills are not conjoint because they are made in different instrument. Among the grounds of opposition are: (a) that the will executed was a complaint or non commandants of the same in the instrument as that of the will of Martina. P 584 Facts: Several relatives of the deceased Bernabe Rodriguez opposed the filing of a petition for the probate of Bernabe’s will by his spouse Mrtina Aruniega. DELA CERNA VS POTOT 12 SCRA 576 Facts: Spouses Bernabe de la Cerna and Gervalia Rebaca. considering that a joint will being prohibited by law. unless it is of such a nature as to render him incapable of knowing what he is doing. Such will is prohibited in the Civil Code and (b) that the testator was under pressure and influence exerted by Martina. The Rules in Civil Procedure respects the right of a testator to make his will anywhere he likes and the same can be probated here. Held: The will maybe probated. As to time Article 2263 2. it is held that said first decree of probate affects only the husband but cannot affect the estate of his wife. Law governing content 1. Upon the death of Gervalia. They are therefore valid. De la Cerna died and said will was submitted to the court for probate. etc Article 16 Law on succession • Point of view o Execution of wills: The formalities of execution of will are generally governed by the law of the place of execution (Article 17[1]) o Distribution of properties: The distribution of the estate is governed by the law of the nation of the deceased (Article 16) • Question on the distribution of the estate o The order of succession in cases of intestacy o The intrinsic validity of the testamentary provisions in case of testate succession o The extent or amount of property which each heir is entitled to inherit o The capacity of certain heirs to succeed o Questions of pretirition. It is a substantive right and cannot be negated by rules. E. disinheritance. creating reciprocal benefits of each spouse. Although two testators who are husband and wife. the estate of a wife should pass upon her death. As to successional rights. and the wife dies late. the testamentary heirs of Gervalia shall have no successional rights. giving parcels of land including fruits to Manuela Rebaca. The SC ruled that where a husband and wife executed a joint will and upon the death of the husband said will was admitted for probate by a final decree of the court although erroneous. He can do so in his own country or anywhere else provided it complies with the laws of the place where it was executed.Held: The will can be probated in the Philippines due to the fact that person has a right to dispose of his property after death through a will and he is not compelled to execute the will in the Philippines. ESTATE OF RODRIGUEZ 46 OG # 2. to her intestate heirs and not to the testamentary heirs. There was no showing that the testator’s decease or physical weakness had affected him in that nature.

therefore she should be given ½ of the said properties because of co-ownership. American Citizen residing in Davao was the manager of the Mindanao Estates. Amos executed a will in the Philippines to which he gave: 1) $240. During his stay. the amount of successional rights.Reason of the unity of the applicable law Capistrano: With regard to succession there is only one will. • The intrinsic validity of the provisions of the will of a foreigner who dies in the Philippines is to be determined by the laws of his own state or country. During their cohabitation for 30 years. Issue: whether Bernada is entitled to ½ of the state under the law on co-ownership? Held: No. When Amos died. giving her trust fund of P3. they cohabited for 30 years. therefore following the aforecited ruling the claim of ½ of the properties cannot be granted. 2) $40. However. there appears no evidence to prove her contributions or participation in the acquisition of the properties involved. Even assuming for the sake of argument that this case falls under the provisions of Article 144 of the Civil Code which recognizes the parties as co-owners of the properties acquired after the act concerned and to no other. wherein the former contended that she was a natural child and therefore must be entitled to the said properties. it must be alleged and proved. 1950. the intrinsic validity of the provision of the will and capacity to succeed. Bernada is not entitled to ½ of the properties. The oneness and universality of the inheritance cannot be divided or broken up merely because of the different countries where properties of the estate are situated. the court already decided. Issue: whether the capacity to succeed is governed by the national law of the decedent or under the law where it is executed? Held: Capacity to succeed shall be governed by the laws of the decedent. ESTATE OF AMOS BELLIS 20 SCRA 358 Facts: Amos Bellis was a citizen of Texas. and each of them has an equal interest in the properties acquired during said union and is entitled to participate therein said properties were the product of their joint effort. for such law cannot be given retroactive effect to govern those already possessed before August 30. Maria Helen and Bernada opposed the said will. he met Bernada Compredora. Whatever public policy and good 48 . by his 2nd wife. they bore 2 daughters namely Maria Lucy and Maria Helen. and not by those of the Philippines. Mary Mallen. his will was to be probated in the CFI of Manila.00 and 4) Adolfo Cruz Aznan as executor.000.000 to each of his 3 illegitimate children and 3) all his remaining properties will be given to his legitimate children. When Edward died he left a will containing: 1) Maria Lucy is his only daughter to which he gave all his properties and income. 3) Bernada was given P1. express in testamentary and presumed in intestate succession. whom he divorced and has 5 children. the capacity to succeed is governed by the national law of the decedent or under the law wherein it is executed. The foreign law is consulted only in regard to the order of succession or the extent of the successional rights. aside from the observation of the trial court that Bernada was an illiterate woman. but uses his surname and alleged to be the offspring of Bernada with another man. wherein they lived as husband and wife without being married. not suffering from any impediment to contract marriage. that when a man and a woman. • The second paragraph can only be invoked when the deceased was vested with a descendible interest in property within jurisdiction of the Philippines. Before the Civil Code went into operation. who is not her daughter. the latter however contended that although they were not married.600. ESTATE OF CHRISTENSEN 61 OG # 46 P 7302 Facts: Edward Christensen. an informal civil partnership exist. lived together as husband and wife.000 to his first wife.00. By his 1st wife. Applicability of foreign law • The second paragraph applies only when a legal or testamentary succession has taken place in the Philippines in accordance with the law of the Philippines. Violet whom he survived 3 legitimate children and he had illegitimate children. 2) Maria Helen. In the case at bar. Proof of foreign law When a foreign law is involved. The decedent’s national law governs the order of succession.

3. senile debility.g. and the nature and present conditions pertaining to each) • When not lacking in testamentary capacity: An actual mistake of the testator as to the extent of his property. those who are the natural objects of his bounty. 2. the disposition of his property by will. old age. or one so dull and obtuse as not to know that he owned property. Property of testator • It does not mean that he must have information in his mind at one time (as persons with large means rarely know precisely what property they own. is not by itself sufficient to establish a presumption of lack of testamentary capacity. when there is sufficient evidence of the mental sanity of the testator at the time of the execution of the will. The testator must have the capacity to understand the nature and effect of his act. He must be able to remember the natural objects of his bounty 4. to make a will. he must comprehend their kind and character. Elements of testamentary capacity 1. by itself. blindness. CAYETANO VS LEONIDES 129 SCRA 524 (page 9) III. He must have sufficient recollection of his properties. He must have sufficient mental ability to make a disposition of his property among the objects of his bounty according to some plan which he has formed in his mind. who may make a will? Article 796 Article 797 Article 798 Article 799 Soundness of mind • The testator must be of sound mind at the time of the execution of the will • To be of sound mind means that he is able to execute his will with an understanding of the nature of the act (e. • When lacking in testamentary capacity: A testator of such feeble mental condition that the cannot furnish his attorney details concerning his property. • Refers to near relations of the testator. TESTAMENTARY CAPACITY AND INTENT A. The instrument propounded is the spontaneous act of a person understanding its nature and consequence. namely. i.customs may be involved in our system of legitimes congress has intended to extend the same to the succession of foreign nationals. and be able to designate them. nor the fact that somebody had to guide the testator’s hand in order that he might sign. Effects of infirmity • Sickness. • Mere weakness of the mind or partial imbecility from disease of body or from age. such as will enable a person. __. 49 . the recollection of the property to be disposed of. under the statute. • The absence of testamentary capacity is not equivalent to insanity. he must know that the instrument is an act mortis causa which will dispose of his property upon his death. has relation to the business transacted.e. of the person who sits or who might necessarily be the subjects of his bounty. Actual insanity need not exist. It is enough that the mental condition be such that there is a want of understanding of the nature and consequences of the disposition of the will. Objects of testator’s bounty • It does not mean that he should know and recognize every distant relative who is entitled to inherit from him under the existing rules of descent. and the manner in which it is to be distributed among them) • Soundness of mind. nor poor memory. does not render a person incapable of making a will.

and the persons who would be the natural objects of his bounty. • Article 807 recognizes the capacity of a deaf-mute to make a will. (2) the beneficiaries or those who would succeed to the property if the will were not made. nor physical condition due to old age (dryness of skin. blind • Modern rule: Neither blindness. can possibly conceive of himself as entertaining. • The testamentary disposition is void when the delusion touches the subject the matter or the will: when it pertains to the (1) property. • It is a belief which no rational man. etc. • What is essential is that person afflicted knew the nature of his act he was performing and expressed his desires so that they were fully understood. Insane delusions • An insane delusion is a false belief for which there is no foundation in reason. table manners. • Not every case insane delusion will render one incapable of making a will. there must be such failure of the mind as to deprive the testator of intelligent action. Deaf. • No presumption of incapacity arises merely because of advanced years. and does not render a testator incapable of making a will.) It is the effect of the causes which the law must deal regardless of what the actual cause may be. and it is the quantity or degree of the effect which the law must determine to arrive at a decision on the presence or absence of testamentary capacity. care of health. senile dementia. or language. or the testator at the time of making the will labors under extraordinary excitement or stress of emotion. • The existence of strong passions and prejudices on the part of the testator is not inconsistent with testamentary capacity. nor all of them combined. unless his mind is so controlled by his peculiar views as to prevent the exercise of a rational judgment relative to the disposition of his property. it is Senile Demetia. • A blind man with a sound disposing mind can certainly make a holographic will.” • To constitute complete senile dementia. • One of the surest indications of the approach of senile decay is that of loss of memory. trouble proceeding from old age. intoxicants. drugs.• • The law does not deal with the causes of unsoundness of mind (e. may not incapacitate a person to make a will. putting himself as nearly as may be in the same situation of the insane person. emaciated body and trembling lips. even if he does not know how to read and write. and failure to answer greetings correctly) are not incompatible with competency. Infirmities of old age (weakness of body and irritability of temper). • A belief in spiritualism. dumb. Christian Science. • Even a considerable or marked degree of eccentricity of conduct. and when caused by old age. Senile dementia • Dementia exists where a mind once sound has become weakened or decayed. and which would be incredible to the same person if of sound mind.” and is distinct from “senile dementia” which is the “peculiar decay of the mental faculties whereby the person afflicted is reduced to second childhood. he may be 50 . injuries. and of which its victim cannot be disposed by either evidence or argument. or any other unusual religious doctrine. fevers. • But where the prejudice borders upon an insane delusion. or a belief in witchcraft is not proof of insanity. wearing apparel. • Article 808 accepts the capacity of a blind testator to make an ordinary or attested will. mental disease. notwithstanding the peculiarity of his conduct. if he can write (as he may have learned to write perfectly well before he became blind). Eccentricities and prejudices • An eccentric person may make a valid will. appearance. nor deafness and dumbness. • A testator may have delusions regarding matters which do not affect or concern his testamentary act and which have no influence upon the disposition which he makes of his estate.g. and where such loss of memory is such as to prevent the testator from recalling the value and extent of his properties. • “Senility” appearing in a death certificate as the cause of death means “infirmity in old age. will alone incapacitate a person to perform the testamentary act (in view of modern science and invention that allow these to acquire understanding and to communicate their desires).

Evidence of mental condition • The evidence should be permitted to take a wide range in order that all facts may be brought out which will determine the question of testamentary capacity. it would be indispensable to the validity of the will to show that it was executed during a lucid interval or after the malady has ceased. in support of the will. • But a person. they are required to give the reason or ground for their opinion as to the sanity or insanity of the testator. Drugs. • The testimony of subscribing witnesses to a will concerning the testator’s mental condition is entitled to great weight when they are truthful and intelligent. and placing him under guardianship. or drugs. the continued use of intoxicants and drugs may so deaden the mentality that a lack of mental capacity arise in the testator. The will should be republished by the testator after he has recovered reason. • If the proof of insanity consists in the degree or judgment of a competent court declaring the testator to be non compos mentis. and thus in this sense destroy the testamentary capacity of the testator. • The mere professional speculation of the attending physician should not prevail over the positive testimony of several apparently credible witnesses whose testimony does not in itself seem unreasonable. and wholly ceases upon the restoration to health. No presumption of insanity • The presumption of insanity does not arise when the malady under which the testator labored was in the nature either accidental or temporary. and the nature of the business at hand. the presumption is and continues until there is judgment or decree by a competent court declaring his restoration and that he is incompetent to make a valid will (This may be rebutted by proof showing his insanity at the time of executing the will. by superabundance of alcoholic drinks or the excessive use of drugs may be so mentally obscured. generally abates with the fever producing it. • The nullity of the will executed when the testator was of unsound mind is not cured by the mere fact that the testator later recovers reason and fails to revoke his will. he cannot make a valid will (for understanding is lacking) • However. that it was made during a lucid interval.rendered devoid of the power to realize the natural objects of his bounty. • The evidence of those present at the execution of the will and of the attending physician is to be relied upon. nor is it raised by the sole fact the testator committed suicide soon after making the will. that for the time being. • Evidence of the testator’s insanity before or recently after the execution of the will gives rise to a presumption of insanity at the time of execution. • In cases the witnesses are not subscribing or attesting witnesses. • Conclusive proof of the mental incapacity and the evident lack of reason and judgment at the time of the execution of the will must be shown before a will may be set aside on the ground of the mental incapacity of the testator. • No presumption of insanity from mere delirium (the direct result of a bodily disease. Determination of sound mind • The soundness of the mind of the testator must be determined at the time of the execution of the will. intoxicants • The use of intoxicants. it may still be shown. Article 800 Burden of proof • The obligation to prove mental incapacity of the testator rests upon those who allege such incapacity. does not mean a complete loss of understanding. even if the guardianship is repealed). the extent of his property. so that in the absence of further proof the presumption of sanity would be rebutted. • If the evidence be such as to show the existence of insanity in the testator generally. • Incapacity will not be presumed from the mere fact that the father and the only child of the deceased are both insane. 51 .

Article 804 Common requirements Requirements apply to both attested and the holographic wills Must be in writing • In a holographic will. of the French Code) Article 803 (Taken from Article 21 of the California Probate Code) B. supervening incapacity Article 801 IV. Article 802 (Taken from Article 905. in the absence of evidence to the contrary Proof of knowledge • There is no statutory requirements that the will should express that the testator knows the language or dialect used therein. the subsequent acquisition of capacity does not validate the will. be translated to them. It is a fact which may be established by extrinsic evidence or proof aliunde. in contemplation of death and before sufficient number of competent witnesses) is not recognized in Philippine laws. Holographic or handwritten will Noncupative wills (one not written but orally declared by the testator in his last illness.Article 801 Capacity at execution • The capacity of the person who leaves a will is to be determined as of the time of the execution of the will • The subsequent change in the capacity does not invalidate the will. engraved or lithographed. it must necessarily be written by the hand of the testator himself • In an ordinary or attested will o It is immaterial who performs the mechanical act of writing the will. • When the testator did not have capacity at the time of execution. Language known to testator • The language or dialect used in the will must be known to the testator • When a will is executed in a certain province or locality there arises a presumption that the testator knew the dialect so used. Kinds of Wills 1. so long as the testator signs it or has somebody sign his name in his presence o It may be written out or printed. • The clause is not part of the testamentary disposition Article 810 52 . The ordinary or attested will 2. SOLEMNITIES OF WILLS A. par 2. • Failure of the witnesses to testify that the testator knew the language in which the will is written does not of itself suffice to give the conclusion that this important requirement has not been complied with Attestation clause • The attestation clause of an ordinary will does not have to be written in a language or dialect known to the testator • The language used in the attestation clause does not even have to be known to the witnesses. or partly written and partly printed. however. It should. as long as the testator was qualified to make the will at the time it was made.

even if at the time of placing it the testator knew how to write and was able to do so. The material thing is that the testator made the mark to authenticate the writing as his will. • A signature by mark will be sufficient. and on the habit or whim of the individual). It must be attested and subscribed by 3 or more credible witnesses in the presence of the testator and of each other 3. as a symbol stand for or represent the testator as the written name would do. Each and every page must be signed by the testator or by the person requested by him to write his name. • The position of the signature at the end of the will furnishes in itself intrinsic evidence of the finality or completion 53 . in the presence of each other. 5.B. on the left margin. token. It must be acknowledged before a notary public by the testator and the witnesses. General Requirements Article 804 SUROZA VS HONDADO 110 SCRA 388 2. Sufficient signature • Any complete sign or design made by the testator upon the material on which the will is written with the intention that it shall. and whatever he puts on for it for that purpose will suffice. it must contain an attestation clause 6. • Signing is making a sign. 4. • Its purpose is not merely to express that the instrument is completed but also to prevent any opportunity for fraud or interpolations between the testamentary dispositions and the signature. and • To guaranty their truth and authenticity Interpretation of requisites • The laws on the solemnities should be interpreted to attain the primordial ends • But one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will Requisites of ordinary wills 1. Specific Requirements Article 805 Object of solemnities surrounding the execution of wills • To close the door against bad faith and fraud • To avoid substitution of wills and testaments. is as sufficient a signing as is the writing of the signature in full. It must be signed at the end thereof by the testator himself or by the testator’s name written by another person in his presence and by his express direction. Each and every page of the will must be numbered correlatively in letters placed o the upper part of each page. Signed by the testator • The usual and the most unequivocal method of signing is for the testator to write his name in full. Notarial Wills 1. 2. Place for signature • The law expressly requires the will to be subscribed at the end thereof by the testator or by his name written by another person in his presence and by his express direction. but this is by no means indispensable. or emblem (which depends upon the custom of the time and place. and by the instrumental witnesses.

Master your semester with Scribd & The New York Times

Special offer for students: Only $4.99/month.

Master your semester with Scribd & The New York Times

Cancel anytime.