You are on page 1of 9


Allowance and Disallowance
Revocation Disallowance
Voluntary act of testator By judicial decree
May be made without cause Must be based on causes provided by law
May be partial Always total

a. Probate
Tolentino definition: to prove before some officer or tribunal vested with authority for the
purpose that the instrument offered to be proved is the last will and testament of the deceased
person whose testamentary act it is alleged to be, and that it has been executed, attested and
published as required by law and that the testator was of sound and disposing mind during its

Article 838. No will shall pass either real or personal property unless it is proved and allowed in
accordance with the Rules of Court.
The testator himself may, during his lifetime, petition the court having jurisdiction for the allowance of
his will. In such case, the pertinent provisions of the Rules of Court for the allowance of wills after the
testator's a death shall govern.
The Supreme Court shall formulate such additional Rules of Court as may be necessary for the allowance
of wills on petition of the testator.
Subject to the right of appeal, the allowance of the will, either during the lifetime of the testator or after
his death, shall be conclusive as to its due execution. (n)

2 Kinds of Probate
Ante Mortem—Proceedings instituted by the testator himself during his lifetime
Post Mortem—Proceedings instituted by heirs or interested persons after the death of testator

Purpose of Probate
The purpose of probate is not to look into the intrinsic validity of the provisions of the will, but
to ascertain the e4xtrinsic validity of the will itself. To determine this, the following must be
established during probate proceedings:
 That the testator executing the will has died.
 That the last will and testament is his.
 That the will was executed while the testator had the capacity to do so, i.e. was of sound
mind and that he was not acting under duress, menace, fraud, or undue influence.
 That the will was executed conforming to all the formalities required by law.

Effect of Probate
After probate proceeding have been established and if the probate court allows the will, if no
appeal is taken within the allowable period, the matter of due execution of the will and capacity
of the testator acquire the character of res judicata.

Gallanosa vs Arcangel (1978)
Facts: Florenciano’s last will bequeathed his properties to Gallanosa and to Fortajada. This was
affirmed during the petition for the probate of the will, despite opposition by the heirs. Later, a
petition for partition of the estate, covering 61 parcels of land was approved by the CFI, a decree
which was not appealed from by the previous heirs-oppositors. However, the heirs later filed an
action for recovery of the parcels of land; this action was dismissed, and the decision became
final for failure to appeal. Nevertheless, the makulit heirs this time filed for ―annulment‖ of the
probate of the will, which eventually was granted the CFI.
Held: The Court ruled that the lower court erred in favouring the ―annulment‖. This action was
not allowed by rules of procedure. Also, any subsequent action after the previous decrees with
regard to the will had already been final would be barred, in keeping with the principles of
prescription and res judicata.

Roberts vs Leonidas (1984)
Facts: Edward died and left two wills disposing of properties in the Philippines and the United
States. The wills were probated in the US but the two families [Edward married twice] settled in
a compromise agreement. Meanwhile, the kids living in the Philippines started an intestate
proceeding that eventually both families took part in. It was only after the partition was
approved that the second family got new lawyers and filed a petition to annul the partition and
compromise agreement and probate the two wills in the Philippines. The judge denied the first
family’s motion to dismiss.
Held: the SC found that he was correct to do so. If a decedent leaves a will, then it is anomalous
to ignore it and commence intestate proceedings. Testacy takes priority over intestacy.

Nepomuceno vs CA (1985)
Facts: Jugo’s left a will wherein he disposed his estate to his legal wife and children, but he
disposed the free portion to his concubine Sofia. It was expressly stated in the will that he had a
subsisting marriage and that he cohabited with Sofia. Sofia asked for the probate of the will. The
will was approved but the devise to Sofia was not approved on the ground of concubinage. She
questioned the court’s jurisdiction on passing on the intrinsic validity of the provisions of the
Held: General rule is that only the extrinsic validity of the will is within the jurisdiction of the
probate court. However when instrinsic issues are present on the face of the will that it will
futile to probate it, the court can pass upon intrinsic issues such as admitted concubinage in this

Reyes vs CA (1997)
Facts: Vivares filed a petition for probate of the will of Torcuato Reyes. In his will, he
bequeathed to his ―wife‖, Asuncion, many of his properties. His children from other women
opposed, saying that Torcuato was never married to Asuncion, as the latter was already
married to another. The Trial Court declared null and void the provisions bequeathing property
to Asuncion for the relationship of Torcuato and Asuncion was an adulterous one.
Held: The lower court was not asked to rule upon the intrinsic validity or efficacy of the
provisions of the will. The rule on probate is NOT inflexible and absolute. Under exceptional
circumstances, the probate court is not powerless to do what the situation constrains it to do
and pass upon certain provisions of the will. The propriety of the institution of Asuncion as one
of the devisees/legatees already involved inquiry on the will’s intrinsic validity and which need
not be inquired upon by the probate court.

Dorotheo vs CA (1999)
Facts: Lourdes wanted to probate her pretend-husband’s will. Court admitted the will to
probate, but upon motion of the Dorotheo Kids, TC declared the will intrinsically void based on
Lourdes’ relationship with Alejandro Dorotheo. Lourdes appealed, but CA dismissed. CA
dismissal became final and executory. THEN, Judge Angas set aside CA decision. CA and SC
ruled in Kids’ favor.
Held: Alejandro’s will was found to be extrinsically valid but intrinsically void. Thus, the rules
of intestacy apply. Questions regarding intrinsic validity, on the other hand, may still be raised
even after the will has been authenticated. An extrinsically valid last will and testament is not
always intrinsically valid. Even if the will was validly executed, if the testator provides for
dispositions that deprive the lawful heirs of their legitime or rightful inheritance, the unlawful
dispositions cannot be given effect. This is specially so when the courts had already determined
in a final and executory decision that the will is intrinsically void. Such determination having
attained that character of finality is binding on this Court. Failure to avail of the remedies
provided by law constitutes waiver.

Camaya vs Patulandong (2004)
Facts: Testatrix devised a land to Mangulabnan. While alive, she had her will probated. But she
subsequently made a codicil modifying the will and giving the subject land to her 4 children
and Mangulabnan. Mangulabnan asked for the delivery of the title of the land to him but
children refused. Mangulabnan filed for partition which was granted but TC provided that
partition was with no prejudice to the probate of the codicil. While codicil was being probated,
Mangulabnan obtained TCT for the land and sold it to the Camayas. Probate court then
probated the codicil and declared the sale void.
Held: Probate court cannot declare the sale void! Its jurisdiction is limited to deciding
WON the instrument which is offered for probate the last will and testament of the decedent;
question of identity; WON the will has been executed in accordance with the formalities
prescribed by law; question of due execution; Whether the testator had testamentary capacity at
the time of the execution of the will; question of capacity.

In Re: Will of Palaganas (2011)
Facts: Ruperta, a Filipino who became an American, died in the US without any spouse or
children. She designated her brother Sergio as the executor. Her other brother filed to the court
a petition to probate the will however it was opposed by the petitioners who were claiming that
the will should first be probated in the US before it can be probated in the Philippines.
Held: The rules do not provide this requirement and in fact, Art 816 recognizes foreign wills.
Our laws do not prohibit the probate of wills executed by foreigners although the same has not
as yet been probated and allowed in the countries of their execution.

b. Grounds for Disallowance (this list is exclusive accdng. to Tolentino)
Article 839. The will shall be disallowed in any of the following cases:
(1) If the formalities required by law have not been complied with;
(2) If the testator was insane, or otherwise mentally incapable of making a will, at the time of its
(3) If it was executed through force or under duress, or the influence of fear, or threats;
(4) If it was procured by undue and improper pressure and influence, on the part of the beneficiary or of
some other person;
(5) If the signature of the testator was procured by fraud;
(6) If the testator acted by mistake or did not intend that the instrument he signed should be his will at
the time of affixing his signature thereto. (n)

Tolentino Notes: Undue pressure and influence requires that there be coercion which the
testator cannot resist resulting in a change in his declarations which he would not have so
declared had there not been pressure or influence. Fraud or trickery is a secret devise, false
statement or clever ruse or pretense by which the testator is fooled into doing something he
would not have otherwise done.

Alsua-Betts vs CA (1979)
Facts: Don Jesus and his wife and children executed an extrajudicial partition allocating half of
their properties to their children equally. The couple later executed their own wills and codicils
which stipulated that the other spouse will be the sole heir of the remaining half share when the
testator dies. Upon the wife’s death, the husband revoked his previous will and bequeathed
several additional properties to Francesca, one of the children.
Held: The Court held that the extrajudicial partition was invalid and it was only to be treated as
a donation. Don Jesus can also revoke his will at any time and he is not bound by the
extrajudicial partition and the former will. The CA erred in not probating the will due to
conjectures that Don Jesus was an honorable man and that he could not have viewed his other
children any less compared to Francesca.


1. In General
Article 840. Institution of heir is an act by virtue of which a testator designates in his will the person or
persons who are to succeed him in his property and transmissible rights and obligations. (n)
Article 841. A will shall be valid even though it should not contain an institution of an heir, or such
institution should not comprise the entire estate, and even though the person so instituted should not
accept the inheritance or should be incapacitated to succeed.
In such cases the testamentary dispositions made in accordance with law shall be complied with and the
remainder of the estate shall pass to the legal heirs. (764)

Ma’am’s comments: The institution of an heir covers not only forced heirs, but necessarily
devisees and legatees.

a. Extent of Grant
Article 842. One who has no compulsory heirs may dispose by will of all his estate or any part of it in
favor of any person having capacity to succeed.
One who has compulsory heirs may dispose of his estate provided he does not contravene the provisions
of this Code with regard to the legitime of said heirs. (763a)

Ma’am’s Comments: This provision takes into account the situation where there are no
compulsory heirs which results in the entire estate of the testator being a free portion which he
can will away to anybody without restrictions. It also declares the restriction of legitimes to
those testators who do have compulsory heirs in that he is allowed to will away his estate, as
long as it won’t impair the rights of his compulsory heirs.

Heirs of Ureta vs Heirs of Ureta (2011)
Facts: To minimize the amount of inheritance tax, Alfonso executed 4 deeds of sale in favor of
his sons, daughter, and common-law wife. Policronio was one of his sons and supposed
transferees. Nonetheless, Alfonso continued to enjoy the ownership and possession of these
lands. When he died, a deed of extrajudicial partition was executed which covered all the lands
covered by the deeds of sale. Conrado, son of Policronio, signed in behalf of the Heirs of
Policronio without a special power of attorney. However, the Heirs of Policronio later filed in
the RTC an action for annulment of the deed of extrajudicial partition and for recovery of
possession of the parcel of land covered by the deed of sale executed by Alfonso to Policronio.
The RTC ruled that the deed of sale was void, but the deed of extrajudicial partition was valid.
The CA, on the other hand, ruled that both the deed of sale and the deed of extrajudicial
partition were void.
Held: As to the deed of sale, the Supreme Court ruled that such was void for being absolutely
simulated and for the absence of consideration. As to the deed of extrajudicial partition, the SC
said it was not void, contrary to the CA’s ruling, but was at best merely unenforceable, as
Conrado lacked the authority to sign. However, the court believed that it wasn’t true that
Conrado’s co-heirs did not authorize him to sign, so in the end, it upheld the validity of the deed
of extrajudicial partition. The issue on preterition and the application of Art 842 cannot apply,
the Court said, because it is a concept of testamentary succession, and there is no will involved
at the case at hand.

b. Effect of predecease of heir
Tolentino Definition: Compulsory heirs are those who succeed to a certain portion of the estate
of the decedent by force of law

Article 856. A voluntary heir who dies before the testator transmits nothing to his heirs.
A compulsory heir who dies before the testator, a person incapacitated to succeed, and one who
renounces the inheritance, shall transmit no right to his own heirs except in cases expressly provided for
in this Code. (766a)

c. Compulsory Heirs
Article 887. The following are compulsory heirs:
(1) Legitimate children and descendants, with respect to their legitimate parents and ascendants;
(2) In default of the foregoing, legitimate parents and ascendants, with respect to their legitimate children
and descendants;
(3) The widow or widower;
(4) Acknowledged natural children, and natural children by legal fiction;
(5) Other illegitimate children referred to in article 287.
Compulsory heirs mentioned in Nos. 3, 4, and 5 are not excluded by those in Nos. 1 and 2; neither do they
exclude one another.
In all cases of illegitimate children, their filiation must be duly proved.
The father or mother of illegitimate children of the three classes mentioned, shall inherit from them in the
manner and to the extent established by this Code. (807a)

d. Voluntary Heirs
Those assigned by the will of the testator to succeed him in a specified portion of his estate.

2. Identifications of Heirs, Manner of Institution
Article 843. The testator shall designate the heir by his name and surname, and when there are two
persons having the same names, he shall indicate some circumstance by which the instituted heir may be
Even though the testator may have omitted the name of the heir, should he designate him in such manner
that there can be no doubt as to who has been instituted, the institution shall be valid. (772)

Ma’am’s Comments: an heir may be identified even if he is not specifically named as long as a
specific heir can ultimately be known from the method of identification made in the will
Tolentino’s Comments: If there happens to be ambiguity and either no heir can be specifically
found or more than 1 heir is pinpointed when the disposition only calls for a single heir, it will b
as if the testator made no disposition at all.

Article 844. An error in the name, surname, or circumstances of the heir shall not vitiate the institution
when it is possible, in any other manner, to know with certainty the person instituted.
If among persons having the same names and surnames, there is a similarity of circumstances in such a
way that, even with the use of other proof, the person instituted cannot be identified, none of them shall
be an heir. (773a)
Article 845. Every disposition in favor of an unknown person shall be void, unless by some event or
circumstance his identity becomes certain. However, a disposition in favor of a definite class or group of
persons shall be valid. (750a)
Article 846. Heirs instituted without designation of shares shall inherit in equal parts. (765)
Article 847. When the testator institutes some heirs individually and others collectively as when he says,
"I designate as my heirs A and B, and the children of C," those collectively designated shall be considered
as individually instituted, unless it clearly appears that the intention of the testator was otherwise. (769a)
Article 848. If the testator should institute his brothers and sisters, and he has some of full blood and
others of half blood, the inheritance shall be distributed equally unless a different intention appears.
Article 849. When the testator calls to the succession a person and his children they are all deemed to
have been instituted simultaneously and not successively. (771)
Article 851. If the testator has instituted only one heir, and the institution is limited to an aliquot part of
the inheritance, legal succession takes place with respect to the remainder of the estate.
The same rule applies if the testator has instituted several heirs, each being limited to an aliquot part, and
all the parts do not cover the whole inheritance. (n)
Article 852. If it was the intention of the testator that the instituted heirs should become sole heirs to the
whole estate, or the whole free portion, as the case may be, and each of them has been instituted to an
aliquot part of the inheritance and their aliquot parts together do not cover the whole inheritance, or the
whole free portion, each part shall be increased proportionally. (n)
Article 853. If each of the instituted heirs has been given an aliquot part of the inheritance, and the parts
together exceed the whole inheritance, or the whole free portion, as the case may be, each part shall be
reduced proportionally. (n)

Ma’am’s Comments: These provisions show that the law presumes equality among the heirs if
there is no express and clear declaration of the testator to the contrary.

3. Cause
Article 850. The statement of a false cause for the institution of an heir shall be considered as not written,
unless it appears from the will that the testator would not have made such institution if he had known
the falsity of such cause. (767a)

Austria vs Reyes (1970)
Facts: Basilia Austria vda de Cruz filed a petition for probate of her will before she died. In her
will, she passed the bulk of her estate to her adopted children Perfecto et. Al. Ruben et. Al.
challenged the validity of the adoption, and claimed that if they could prove that the adoption
was spurious, Perfecto et al could not be instituted as heirs.
Held: The SC disagreed. A false cause is only ignored, not made a cause for annulling the
institution of heirs, unless it can be shown that the testator would not have so willed if he had
known the falsity of the cause. Basilia’s will was not clear on this matter. As the law favors
testacy, Basilia’swill must be given full effect.

Article 854. The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator, shall annul
the institution of heir; but the devises and legacies shall be valid insofar as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the institution shall be effectual, without
prejudice to the right of representation. (814a)

a. Concept
Tolentino Definition: Preterition means the total omission of a compulsory heir from the
inheritance. It is usually done by the silence of the testator inadvertently.

Reyes vs Barreto-Datu (1967)
Facts: Bibiano was married to Maria Gerardo. They owned many properties, including a
fishpond. Bibiano instituted his children Salud and Milagros and his sisters Rosa and Felisa as
heirs. In her role as administratrix, Maria prepared a project of partition where SaludBarretto
was given a share. It turned out that Salud was not a daughter of Bibiano and Maria.
Held: The institution of Salud, although it reduced the share of the forced heir Milagros, did not
constitute preterition because there was no total omission of a forced heir because they were
both given a share in the will.

Aznar vs Duncan (1966)
Facts: Trial Court approved the project of partition submitted by the executor wherein the
properties of the estate were divided equally between Lucy Duncan, whom the testator had
expressly recognized in his will as his natural daughter and Helen Garcia, who had been
judicially declared as such after his death. This was based on the proposition that Helen Garcia
was pretirited in the will.
Held: The Court held that there is no preterition of Helen Garcia and the annulment of the
institution of heirs is not proper. The testator did not entirely omit Helen Garcia, but left her a
legacy of P3,600.00.

J.L.T. Agro vs Balnsag (2005)
Facts: Don Julian stipulated in a compromise agreement that his second wife and children
would be exclusively adjudicated Lot No. 63 upon his death. Later on, he assigned the lot to his
children from his first marriage. Second wife sold the lot to the Balansags while children from
first marriage assigned the lot to the family corporation JLT Agro.
Held: While Lot No. 63 was exclusively adjudicated to the second family in a compromise
agreement when a decedent was alive, it could be validly revoked during the decedent’s
lifetime it being a partition inter vivos which can only become effective only after the death of
the owner of the property.

b. Distinguished from Disinheritance
Preterition Disinheritance
Tacit method of deprivation of legitime Express method of deprivation of legitime
Always done voluntarily Presumed by law that it is involuntary
There must be legal cause Done by oversight or mistake
Heir completely excluded from inheritance,
and if inheritance is not lawfully made, he is
merely restored to his legitime
Omitted heir gets not only his legitime but
also his share in the free portion not disposed
of by way of legacies and devisees

c. Who are covered
The provision expressly states that those who are ―compulsory heirs in the direct line‖ are
affected by preterition. This direct line initially refers to descendants of the testator, after which
those further stated in Article 887 become qualified.

Acain vs CA (1987)
Facts: ConstantinoAcain filed with the RTC a petition for the probate of the will of his late
Uncle, Nemesio, on the premise that the latter died leaving a will in which the former and his
brothers and sisters were instituted as heirs. Virginia, the legally adopted daughter of Nemesio,
and Rosa Diongson, the widow of the deceased, filed a motion to dismiss on the grounds that:
(1) ConstantinoAcain has no legal capacity to institute the proceedings; (2) he is merely a
universal heir; and (3) the widow and the adopted daughter have been pretirited.
Held: Insofar as the widow is concerned, Article 854 may not apply as she does not ascend or
descend from the testator, although she is a compulsory heir. However, the same thing cannot
be said of the legally adopted daughter. Under Article 39 of P.D. No. 603, known as the Child
and Youth Welfare Code, adoption gives to the adopted person the same rights and duties as if
he were a legitimate child of the adopter and makes the adopted person a legal heir of the
adopter. It cannot be denied that she was totally omitted and preterited in the will and that both
the adopted child and the widow were deprived of at least their legitime. Neither can it be
denied that they were not expressly disinherited. Hence, this is a clear case of preterition of
d. Effects
Article 855. The share of a child or descendant omitted in a will must first be taken from the part of the
estate not disposed of by the will, if any; if that is not sufficient, so much as may be necessary must be
taken proportionally from the shares of the other compulsory heirs. (1080a)

Nuguid vs Nuguid (1966)
Facts: Rosario Nuguid died without descendants. Remedios, her sister, brings to probate a
holographic will where Rosario bequeaths her entire estate to Remedios. Their parents Feliz and
Paz opposed, claiming that if Remedios is instituted as universal heir, they (parents) would be
illegally preterited.
Held: The deceased Rosario left no descendants, but left forced heirs in the direct ascending line
– her parents. The will completely omits both of them, depriving them of their legitime. Neither
were they expressly disinherited. There was only one provision in the will where Roasario
instituted Remedios as universal heir. That institution is null and void. Thus, intestate
succession ensues.

Solano vs CA(1983) [Case was not discussed, Ma’am says it was an erroneous decision]
Facts: Bienvenido and Emeteria Garcia file a case against Solano for their recognition as his
illegitimate children. Solano dies during trial and is substituted by Zonia, who was previously
declared to be Solano sole and universal heir in a probate proceeding that Solano instituted
BEFORE he died. Zonia argued the status of the Garcias and put forward her own status. The
Garcia presented evidence challenging Zonia’s status as heir and natural child as well as
establishing their illegitimacy. The TC and CA ruled, not only that the Garcia’s were Solano’s
children, but that Zonia was not sola and universal heir and natural child of Solano and that all
three were on the same footing and should share in the estate of Solano equally. Zonia
challenges the jurisdiction of the TC and CA to rule on matters already previously ruled on in a
probate proceeding.
Held: SC is bound by the factual findings of the lower courts. Since Zonia, in being substituted
for Solano in the recognition case, not only contested the status of the Garcias but also put
forward her status, she converted the recognition case into a contest of both parties’ statuses,
giving the lower courts jurisdiction to declare null and void Zonia’s status as heir and natural
child. As to the declaration of the lower courts in the division of shares which was allegedly
already ruled in a previous probate proceeding, the SC relied on Article 854 of the Civil Code;
―The preterition or omission of one, some, or all of the compulsory heirs in the direct line,
whether living at the time of the execution of the will or born after the death of the testator,
shall annul the institution of heir; but the devises and legacies shall be valid insofar as they are
not inofficious. ...‖