Succession Reviewer Lectures 4th Year

SUCCESSION REVIEWER (4th Year : 2008-2009)
Prepared by: Jazzie M. Sarona

Sources & References: Notes of Atty. Lielanie Yangyang-Espejo; Lectures of Atty. Lielanie Yangyang-Espejo (as transcribed by Jo Anne Beltran, Edin Ann Buiser, Karla Deles,
Rey Mar Ondi and Jazzie Sarona); Wills and Succession by Paras
c. Contractual succession happens when future husbands
WILLS & SUCCESSION and wives give to each other in their marriage settlement
future property, which shall be effective upon their death
TITLE IV d. Freak succession is where there is still succession even
Succession without the intervening effect of succession. This happens
when in a decree of annulment or separation or nullity of
CHAPTER 1 the marriage, the spouses are ordered to deliver to their
General Provisions children their presumptive legitime.
ARTICLE 774. Succession is a mode of acquisition by virtue of ARTICLE 775. In this Title, "decedent" is the general term
which the property, rights and obligations to the extent of the value of applied to the person whose property is transmitted through
the inheritance, of a person are transmitted through his death to succession, whether or not he left a will. If he left a will, he is also
another or others either by his will or by operation of law. (n) called the testator. (n)
Succession is a derivative mode of acquisition The decedent is the person who died whether or not he
left a will
Bases of Succession The testator is the person who died who left a will
1. Natural Law
2. Socio-economic postulate prevents wealth from being ARTICLE 776. The inheritance includes all the property, rights
stagnant and obligations of a person which are not extinguished by his death.
3. Attribute of ownership (659)
Foreigners can acquire lands in the Philippines only in case of Inheritance is different from succession because the latter is a
hereditary succession, which is succession by operation of law mode of acquisition, by virtue of which the property, rights and
and not by a will obligations are transmitted.
Property, as defined by law, may be subject of succession
Kinds of Succession except the following:
I. As to effectivity: 1. Those which are outside the
a. Inter vivos (donation) effective during the lifetime of commerce of men or which are not owned by men (res
the person nullus)
b. Mortis causa (succession) effective upon the death of 2. Those which are owned by everyone
the person (res communes)
3. Those which are prohibited by law
If a deed is a donation, there are certain 4. Any property which is not capable of
formalities that must be observed appropriation
If a deed is succession, the formalities will be
different. If it is a will, the person intended it to be a The ownership of organs may be transferred by donation or by
succession and the formalities shall comply with the will. Even if the formalities of the will are not complied with,
formalities of a will as long as the donation was made in good faith, the will or
donation is not valid. It shall be given effect since the
2 Types of Will: important element is that the will was made in good faith.
i. Notarial Will
ii. Holographic Will RIGHTS
Purely Personal Rights
3 distinguishing characteristics of a donation mortis GENERAL RULE: It is not transmissible since it is
causa: extinguished by death
1. It conveys no title or ownership to the transferee before the EXCEPTION: It is transmissible:
death of the transferor; or what amounts to the same thing: the
Article 173 Family Code The action to claim
transferor should retain ownership (full or naked) and control of
legitimacy may be brought by the child during his
the property
lifetime and shall be transmitted to the heirs should
2. Before his death, the transfer should be revocable by the
the child die during minority or in a state of insanity .
transferor at will, ad nutum but revocability may be provided for
In these cases, the heirs shall have a period of five
indirectly by means of a reserved power in the donor to dispose of
years within which to institute the action.
the properties conveyed
3. The transfer should be void if the transferor should survive Examples:
the transferee - right to parental authority
If these 3 characteristics are present, the document is not a - marital rights
deed of donation but rather, it is a will. It must comply with the - right of a Chinese merchant
formalities of a will - right to vote
Patrimonial rights
II. As to whether or not there is a will: These are rights which refer to property
a. Testamentary or Testate Succession if a person leaves GENERAL RULE: Transmissible
a will Examples: action for forcible entry/unlawful detainer
b. Intestate or Legal Succession if a person dies without action to recover property
leaving a will EXCEPTIONS:
Extinguished by death as provided by law or agreement by the
III. As to the transferee or the recipient of the property parties (ex. agency, commodatum, contract of lease)
a. Compulsory succession or succession to the legitime OBLIGATIONS
Part of property which cannot be disposed of to anybody GENERAL RULE: Transmissible
because that portion is reserved to his compulsory heirs. EXCEPTIONS:
Compulsory heirs are the persons who cannot be deprived of 1. Purely personal
their inheritance regardless of the will of their decedent. 2. Non-transferable by law
b. Voluntary succession or the succession to the free 3. Non-transferable by contract or agreement between the
portion If a person dies, his estate shall be divided into 2 parties.
parts. One part is the legitime which is reserved for his Examples of obligations extinguished by death:
compulsory heirs and the other part is the free portion which 1. Obligation to pay taxes
he can give to anybody 2. Criminal liability
3. Right to give support
IV. As to the extent of right and obligations involved: Debts (2 views)
a. Universal succession or succession by an heir is the 1. Not transmissible since it is actually the estate of the
succession to the universality or the aliquot portion of the deceased which pays the debts
estate of the decedent 2. Transmissible because the shares of the heirs are reduced
b. Particular succession which is succession to the specific by the payment of the debts (preferred view)
portion of the property of the decedent
1
ARTICLE 777. The rights to the succession are transmitted from 1. TESTAMENTARY SUCCESSION IS PREFERRED OVER
the moment of the death of the decedent. (657a) INTESTATE SUCCESSION
When there is a will, the will has to undergo probate.
Death is a condition for the transmission of a right by succession. Probate is a proceeding wherein you determine whether or not
While your parents are still alive, their properties are still owned the will was validly executed and whether or not the will was
by them. What you have is merely an inchoate right or an executed by person who has testamentary capacity.
expectancy. It is not an absolute right. There is no prescriptive period in the probate of will as
long as there is a will.
Conditions for the transmission of a successional right:
1. There should be death (actual or presumed) of the transferor 2. DOUBTS MUST BE RESOLVED IN FAVOR OF TESTACY
2. The rights or properties are transmissible If there is doubt as to the validity of a will, the
3. The transferee is alive interpretation wherein the will is given effect should be
preferred.
Presumed Death
Under ordinary circumstances, 10 years Legal or Intestate Succession
After the age of 75, 5 years 1. There is no will
In these 2 instances, the moment of death is reckoned 2. The will is not valid at all
after 5 or 10 years, whichever is applicable.
ARTICLE 780. Mixed succession is that effected partly by will
Under extraordinary circumstances, 4 years and partly by operation of law. (n)
In this instance, the moment of death is reckoned
from the moment of disappearance.
When mixed succession occurs:
1. When the testator fails to dispose all of his properties in a will
ARTICLE 390 (New Civil Code). After an absence of 2. When the will does not validly dispose of all the property of the
seven years, it being unknown whether or not the absentee testator
still lives, he shall be presumed dead for all purposes, except
for those of succession.
ARTICLE 781. The inheritance of a person includes not only
The absentee shall not be presumed dead for the
the property and the transmissible rights and obligations existing at
purpose of opening his succession till after an absence of ten
the time of his death, but also those which have accrued thereto
years. If he disappeared after the age of seventy-five years,
since the opening of the succession. (n)
an absence of five years shall be sufficient in order that his
succession may be opened. (n)
This article refers to after-acquired properties. Those are
ARTICLE 391 (New Civil Code). The following shall be
presumed dead for all purposes, including the division of the acquired from the moment of death onwards will belong to the
estate among the heirs: devisee, legatee or the heir to whom the property was given.
(1) A person on board a vessel lost during a sea voyage, or
an aeroplane which is missing, who has not been heard of Inheritance includes:
for four years since the loss of the vessel or aeroplane; The property, transmissible rights and the transmissible
(2) A person in the armed forces who has taken part in obligations of the decedent to the extent of the value of the
war, and has been missing for four years; inheritance; and
(3) A person who has been in danger of death under other Those properties, or rights or
circumstances and his existence has not been known for obligations, if any, which have accrued since the opening of the
four years. (n) succession.
ARTICLE 782. An heir is a person called to the succession

ARTICLE 43 (New Civil Code). If there is a doubt, as
either by the provision of a will or by operation of law.
between two or more persons who are called to succeed
Devisees and legatees are persons to whom gifts of real and
each other, as to which of them died first, whoever alleges
personal property are respectively given by virtue of a will. (n)
the death of one prior to the other, shall prove the same; in
the absence of proof, it is presumed that they died at the
same time and there shall be no transmission of rights from Heirs
one to the other. (33) Those who succeed to the universality of the rights,
properties and obligations of the decedent
They are not given specific portions of the property but
If there are circumstances which point to the time of the
aliquot shares
actual death of the person, then, that time wherein there is
proof should be flowed and not the presumptions.
Kinds of Heirs:
Compulsory or forced heirs are
In theory, the heirs can immediately dispose of their
persons who are not deprived of their inheritance unless there
properties when the decedent dies because of Article 777. But in
are causes to disinherit them and the causes are provided by
reality, you cannot since the will has to be probated first.
law. LEGITIME is that portion of the property, rights and
If you are the sole heir, all you have to do is execute an
obligations of the decedent which you cannot just dispose of
Affidavit of Self-Adjudication and follow the process provided by
because the law reserved it for the compulsory heirs.
law
Legal or intestate heirs are heirs
If there is more than one heir, they may execute and
who inherit by operation of law. The person dies without a will.
Extrajudicial settlement among themselves and follow the process
Voluntary, testamentary or testate heirs are heirs who will
provided by law
inherit because of the will of the decedent.
ARTICLE 778. Succession may be: All compulsory heirs are legal heirs.
(1) Testamentary; But not all legal heirs are compulsory heirs. When a person dies
(2) Legal or intestate; or without a will, then, the compulsory heirs succeed by operation
(3) Mixed. (n) of law. If there is a will but the will is not valid, then, the
compulsory heirs succeed by operation of law since the will is
ARTICLE 779. Testamentary succession is that which results disregarded.
from the designation of an heir, made in a will executed in the form The free portion may be given to anybody except those
prescribed by law. (n) who are prohibited by law to inherit from the decedent. If
there is a will, the free portion is given to the voluntary heirs
Conditions for Testamentary Succession: PRETERITION happens when a direct line or a
1. There must be a will compulsory heir is omitted form the will. The effect is the will
2. There should be a designation of heir cannot be given effect. So, there shall be intestacy wherein the
3. There must be observance of the formalities required will is disregarded and as if the person died without a will.
by law.
Legatee or Devisee
PRINCIPLES IN TESTAMENTARY SUCCESSION Legatee succeeds to personal properties
2
Devisee succeeds to real properties or immovable properties 7. It is free from vitiated consent
of the decedent 8. It is essentially revocable and ambulatory
9. It is an individual act, as distinguished from a joint act
The will must contain the act of only one person. Joint will
are prohibited.
10. It disposes of the testators estate in accordance to his wishes
11. It is effective mortis causa
Distinctions between Heirs & Legatees and Devisees: ARTICLE 784. The making of a will is a strictly personal act; it
cannot be left in whole or in part to the discretion of a third person,
HEIRS LEGATEES & DEVISEES or accomplished through the instrumentality of an agent or attorney.
1. Succeed by general right or 1. Succeed by special or (670a)
universal title to all or an aliquot particular title
part of the estate Holographic wills are supposed to be entirely written,
2. Heirs exist both in 2. Legatees and devisees exist dated and signed in the hands of the testator. Even the
testamentary succession and only in testamentary succession mechanical act of drafting the will cannot be delegated to a
intestate succession third person
3. The heir, if compulsory, 3. Legatees and devisees As to notarial wills, the mechanical act of drafting the will
succeeds to the inheritance succeed only by testators will can be delegated to a third person. But the content of the will
regardless of the will of the must be the disposition of the testator himself
decedent
4. Quantity cannot be 4. Quantity can easily be ARTICLE 785. The duration or efficacy of the designation of
determined until after liquidation determined heirs, devisees or legatees, or the determination of the portions
of properties of the estate which they are to take, when referred to by name, cannot be left to
5. Heirs represent the juridical 5. Legatees and devisees do not the discretion of a third person. (670a)
personality of the deceased, represent the juridical
acquiring his property, rights personality of the deceased
and obligations because it acquires only
properties Testamentary acts which cannot be delegated to third
6. Heirs succeed to the 6. Legatees and devisees persons:
remainder of the estate after all succeed only to the determinate 1. The duration of designation of the heirs, devisees or
the debts, devisees and legatees thing or amount given legatees
have been paid 2. The efficacy of the designation of the heirs, devisees or
legatees
Importance of distinguishing heirs from legatees and devisees: 3. The determination of the portions which the heirs,
1. When there is preterition, the instituted voluntary devisees, or legatees are to take, when refereed to by
heirs do not get anything. The legatees/devisees retain the name
properties given to them as long as the legitime is not impaired.
2. When there is invalid disinheritance, the instituted ARTICLE 786. The testator may entrust to a third person the
voluntary heir gets nothing while the one who received properties distribution of specific property or sums of money that he may leave
by way of legacy or devise retains the property given to them as in general to specified classes or causes, and also the designation of
long as the legitimes of the compulsory heirs are not impaired. the persons, institutions or establishments to which such property or
sums are to be given or applied. (671a)
CHAPTER 2
Testamentary Succession
What is entrusted to a third person is the distribution of
specific property or sums of money
SECTION 1
Wills
Requisites of Article 786:
1. The testator entrusts to a third person
SUBSECTION 1
2. The distribution of specific property or sums of money
Wills in General
3. These specific property or sums of money are left in
general to specific classes or causes
ARTICLE 783. A will is an act whereby a person is permitted, with 4. There is the designation of the persons, institutions or
the formalities prescribed by law, to control to a certain degree the establishments to whom such property or sums of money are to
disposition of his estate, to take effect after his death. (667a) be given or applied
The making of a will is an act by which a person is permitted Distinction between Article 785 and Article 786:
by law to repose his property effective upon his death. It is not a
mode of transferring property because that is succession. It does Article 785 Article 786
not also consist of property, rights and obligations because that is The heirs, legatees or devisees There is no such heir, legatee or
inheritance. are named. devisee that is named
A will is an instrument wherein certain dispositions are made There is no specific property or There is specific property or
by persons to effect mortis causa sums of money. sums of money.
Thus, it may be an or an instrument What is delegated is the There is a determination of the
determination of the portion persons, establishments or
Elements of a Will: which shall go to the named heir, institution or to whom the
1. It is strictly a personal act legatee or devisee. specific property or sums of
It cannot be delegated to a third person. The disposition of money is to be given or applied.
the will should be the disposition of the person. Since it is personal,
will-making shall not be made in public. Even if a will is
acknowledged before a notary public, a will is not a public document. ARTICLE 787. The testator may not make a testamentary
Even a notary public is not required to keep a copy of the will. disposition in such manner that another person has to determine
2. There must be animus testandi (intent to make a will) whether or not it is to be operative. (n)
One should know that the effect of such document is to
transfer ones properties to a particular person mentioned in the Article 785 Article 787
document. This refers more to the This refers more on the
3. The making of a will is a statutory right, not a natural right institution of the heirs. designation or disposition of the
4. It is a solemn or formal act properties. This is not valid
For the will to be valid, each form shall comply with the rules because the disposition is subject
prescribed by the New Civil Code. to the will of a 3rd person.
5. It is a unilateral act Whether or not a disposition shall
The testator cannot condition the validity of his will upon the be valid cannot be left to the will
consent of another. of a 3rd person.
6. The testator must be capacitated to make a will
3
ARTICLE 788. If a testamentary disposition admits of different

interpretations, in case of doubt, that interpretation by which the ARTICLE 792. The invalidity of one of several dispositions
disposition is to be operative shall be preferred. (n) contained in a will does not result in the invalidity of the other
dispositions, unless it is to be presumed that the testator would not
The will must be interpreted liberally in favor of validity have made such other dispositions if the first invalid disposition had
In the interpretation of the will, the wishes of the testator is not been made. (n)
the first and principal law
GENERAL RULE: The invalid dispositions will not affect the valid
ARTICLE 789. When there is an imperfect description, or when ones. The will remains valid.
no person or property exactly answers the description, mistakes and EXCEPTION: Entire will is invalidated or the valid dispositions are
omissions must be corrected, if the error appears from the context of invalidated is if it is the intention of the testator that both the valid
the will or from extrinsic evidence, excluding the oral declarations of and invalid dispositions are to be indivisible, such that the other
the testator as to his intention; and when an uncertainty arises upon dispositions cannot be given effect if the other dispositions turn out
the face of the will, as to the application of any of its provisions, the to be invalid.
testator's intention is to be ascertained from the words of the will,
taking into consideration the circumstances under which it was made, ARTICLE 793. Property acquired after the making of a will shall
excluding such oral declarations. (n) only pass thereby, as if the testator had possessed it at the time of
making the will, should it expressly appear by the will that such was
2 KINDS OF AMBIGUITY his intention. (n)
1. PATENT OR EXTRINSIC AMBIGUITY appears on the face
of the will itself. Article 793 covers those after-acquired properties after the
2. LATENT OR INTRINSIC AMBIGUITY does not appear on execution of the will up to the time of the death
the face of the will. Ambiguity is discovered by examination Article 78 covers properties arising from the moment of death
outside the will. onwards
Article 793 only applies to devices and legacies and not to
4 kinds of Latent or intrinsic ambiguity inheritance because inheritance comprises the universality or an
1. Imperfect description of the heirs, legatees or devisees aliquot portion of the estate
2. Imperfection description of the property to be given
3. When 2 or more persons meet the description GENERAL RULE: Only those properties owned by the testator at the
4. When 2 or more things/properties meets the description time of the execution of the will are included. Those acquired after
the execution of the will are excluded.
How to resolve the ambiguities? EXCEPTIONS:
1. Intrinsic Evidence You cure the ambiguity by examining 1. If the testator expressly provides in his will that properties
the will. You examine the words used in the will. acquired AFTER the execution of the will are included.
2. Extrinsic Evidence/Evidence Aliunde Evidence that is 2. Article 836 the effect of the execution of a codicil
not found in the will but found outside of the will, such as 3. Article 930 legacy or device belonging to another person is
letters, documents, persons or investigation void as a general rule because the testator cannot give what he
does not own. But if the testator later acquires the ownership,
Oral evidence the legacy or devise can be given effect
Supposed oral declarations of the testator cannot 4. Article 935 legacy of credit or remission of debt
be used because the testator is already dead
Oral testimonies of other persons can be used for ARTICLE 794. Every devise or legacy shall convey all the
as long as they are not testifying on the supposed oral interest which the testator could devise or bequeath in the property
declarations of the testator disposed of, unless it clearly appears from the will that he intended
to convey a less interest. (n)
Dead Mans Statute
In an action where a claim is filed against the estate, where GENERAL RULE: All of the testators rights in a property are
the plaintiff is the claimant and the defendant is the executor of transmitted because it is presumed that the testator intended to
the deceased person, both parties are prohibited to testify as to dispose his whole interest in the property.
something which the deceased said in his lifetime EXCEPTIONS:
1. If it clearly appears in the will that the testator merely intend to
ARTICLE 790. The words of a will are to be taken in their convey a less interest
ordinary and grammatical sense, unless a clear intention to use them in 2. If the testator clearly provided that he conveys a greater
another sense can be gathered, and that other can be ascertained. interest
Technical words in a will are to be taken in their technical sense, 3. The testator can also give property which he knows is not
unless the context clearly indicates a contrary intention, or unless it owned by him
satisfactorily appears that the will was drawn solely by the testator,
and that he was unacquainted with such technical sense. (675a) ARTICLE 795. The validity of a will as to its form depends upon
the observance of the law in force at the time it is made. (n)
Ordinary Terms
GENERAL RULE: Give it an ordinary or literal meaning Kinds of validity of wills:
EXCEPTION: If there is an intention to give it another 1. FORMAL or EXTRINSIC VALIDITY refers to the forms and
meaning solemnities and the formalities that have to be conformed and
complied with in the execution of the will.
Technical Terms
These are used by persons engaged in specialized activities 2. INTRINSIC VALIDITY refers to the legalities of the
in certain fields or profession provisions of wills.
GENERAL RULE: Give it a technical meaning
EXCEPTIONS: EXTRINSIC VALIDITY
1) If the testator himself made the will and it is very clear that he is
unacquainted or unfamiliar with the term ARTICLE 17 NEW CIVIL CODE. The forms and
2) If it is really the intention of the testator to give the technical word solemnities of contracts, wills, and other public
an ordinary meaning instruments shall be governed by the laws of the country
in which they are executed.
ARTICLE 791. The words of a will are to receive an interpretation When the acts referred to are executed before the
which will give to every expression some effect, rather than one which diplomatic or consular officials of the Republic of the
will render any of the expressions inoperative; and of two modes of Philippines in a foreign country, the solemnities
interpreting a will, that is to be preferred which will prevent intestacy. established by Philippine laws shall be observed in their
(n) execution.
Prohibitive laws concerning persons, their acts or
2 parts of Article 791: property, and those which have for their object public
1. The will must be interpreted as a whole order, public policy and good customs shall not be
2. Testacy favored over intestacy rendered ineffective by laws or judgments promulgated,
4
or by determinations or conventions agreed upon in a the New Civil Code, illegitimate children have successional rights.
foreign country. (11a) Since
the testator died during the effectivity of the New Civil Code, the will
Extrinsic Validity can be viewed from 2 points: is intrinsically void.
a. Viewpoint of TIME the extrinsic validity of a will depends upon
the observance of the law enforced at the time the will is made, not at b. Viewpoint of PLACE/COUNTRY law enforced is the
the time of death and not at the time of probate. Testator cannot national law of the decedent
possibly and is not expected to know what laws will govern in the
future. ARTICLE 16 NEW CIVIL CODE. Real property as well
as personal property is subject to the law of the country
b. Viewpoint of PLACE/COUNTRY where it is situated. iatdc2005
i. Testator is a Filipino who However, intestate and testamentary successions,
executes a will in the Philippines Philippine laws shall both with respect to the order of succession and to the
be applied amount of successional rights and to the intrinsic validity
ii. Testator is a Filipino who of testamentary provisions, shall be regulated by the
executes a will abroad before the diplomatic or consular national law of the person whose succession is under
officials of the Philippines Philippine laws shall be consideration, whatever may be the nature of the
applied property and regardless of the country wherein said
iii. Testator is a Filipino who property may be found. (10a)
executes a will abroad not before a diplomatic or
consular officials of the Philippines 2 Proceedings if a person dies with a will:
A. Law of the place where he 1. Probate proper proceeding instituted to determine the
may be Article 815 genuineness and authenticity of a will. It is concerned
B. Law of the place where he only with the extrinsic validity of the will.
executes the will Article 17 2. Distribution proceedings intrinsic validity of the will is
C. Philippine law Article 815 considered
iv. Testator is an alien who executes
a will abroad GENERAL RULE: Foreign laws may not be taken judicial notice of
A. Law of the place where the and has to be proven like any other fact in dispute between the
will is executed Article 17 parties in any proceeding
B. Law of the place of his EXCEPTIONS:
residence or domicile Article 816 1. If the foreign laws are within the actual knowledge
C. Law of his own country or of the court; or
nationality Article 816 2. When these laws have been considered before by
D. Philippine law Article 816 the court in a previous case and the parties do not oppose as
v. Testator is an alien who executes to the consideration of the court as to the existence of the
a will in the Philippines foreign law.
A. Law of the place where the
will is executed (Philippines) Article 17 Instances when the intrinsic validity of wills of foreigners is
B. Law of his own country or governed by Philippine laws
nationality Article 817 1. DOCTRINE OF PROCESSUAL PRESUMPTION
In the absence of evidence of foreign laws, it is presumed
ARTICLE 815. When a Filipino is in a foreign country, he is that it is the same as Philippine law.
authorized to make a will in any of the forms established by the law of 2. RENVOI DOCTRINE (referring back)
the country in which he may be. Such will may be probated in the The testator is a Philippine resident and a national of
Philippines. (n) another country. The national law of the decedent says that
the intrinsic validity of a will should be governed by the
ARTICLE 816. The will of an alien who is abroad produces effect domiciliary law or the law of his residence or domicile. Hence,
in the Philippines if made with the formalities prescribed by the law of Philippine law will be applied.
the place in which he resides, or according to the formalities observed
in his country, or in conformity with those which this Code prescribes. SUBSECTION 2
(n) Testamentary Capacity and Intent
ARTICLE 817. A will made in the Philippines by a citizen or Testamentary power refers to the right or privilege
subject of another country, which is executed in accordance with the given by the state to the individual to execute wills.
law of the country of which he is a citizen or subject, and which might Testamentary capacity refers to the qualification of a
be proved and allowed by the law of his own country, shall have the person to execute a will.
same effect as if executed according to the laws of the Philippines. (n) A person may have testamentary power but no
testamentary capacity
The legislature cannot validate a void will There are persons who have testamentary capacity but
they do not have testamentary power, like in some other
INTRINSIC VALIDITY countries
Intrinsic Validity can be viewed from 2 points: But they may be used interchangeably
a. Viewpoint of TIME law enforced at the time of the death of the
decedent KINDS OF TESTAMENTARY CAPACITY
1. Active Testamentary Capacity refers to the
ARTICLE 2263 NEW CIVIL CODE. Rights to the inheritance qualifications of persons to execute wills
of a person who died, with or without a will, before the 2. Passive Testamentary Capacity refers to the
effectivity of this Code, shall be governed by the Civil Code qualifications of persons to receive by virtue of a will. This
of 1889, by other previous laws, and by the Rules of Court. would be discussed more exhaustively under the chapter on the
The inheritance of those who, with or without a will, die capacity to succeed.
after the beginning of the effectivity of this Code, shall be
adjudicated and distributed in accordance with this new ARTICLE 796. All persons who are not expressly prohibited by
body of laws and by the Rules of Court; but the law may make a will.
testamentary provisions shall be carried out insofar as they
may be permitted by this Code. Therefore, legitimes, Testamentary capacity is the general rule
betterments, legacies and bequests shall be respected;
however, their amount shall be reduced if in no other ARTICLE 797. Persons of either sex under eighteen years of
manner can every compulsory heir be given his full share age cannot make a will. (n)
according to this Code. (Rule 12a) How do you compute 18 years?
Example: A will was executed in 1910 without giving anything to 1. Theory under the Spanish Law
his illegitimate child. If he died under the Old Civil Code, the
illegitimate child does not have a successional right. If he died under
5
Under the Spanish law, the 18th birthday should have passed What can the married woman or man disposed of in a will?
or commenced before the person can execute a will. We follow 1. He/she may dispose of his/her separate property; or
Spanish Law 2. He/she may dispose of his/her share in the conjugal/community
2. Theory under the American Law property.
It is sufficient that the day preceding ones birthday has
already commenced. If the spouse disposes of the entire community property, the
3. Theory under the Civil Code disposition is only valid with respect to the portion pertaining to
You are already 18 years old 4 days before your birthday the share of the spouse who is the testator. The remaining
because under the Civil Code, 1 year is 365 days. And in 18 portion becomes invalid. But if the spouse knows that he or
years, there are 4 leap years. So, 4 days prior to your birthday, she has no right to dispose of the share or his or her spouse
under the Civil Code, you are already 18 years of age. but still he or she provides in the will that such portion or the
entire portion be given to a certain person, in that case, you will
ARTICLE 798. In order to make a will it is essential that the learn later on that it is valid. What is to be done is for the
testator be of sound mind at the time of its execution. estate to acquire the other portion.
ARTICLE 799. To be of sound mind, it is not necessary that the

SUBSECTION 3
testator be in full possession of all his reasoning faculties, or that his
Forms of Wills
mind be wholly unbroken, unimpaired, or unshattered by disease,
injury or other cause.
2 Kinds of Wills:
It shall be sufficient if the testator was able at the time of making
1. ORDINARY OR NOTARIAL WILL that which requires,
the will to know the nature of the estate to be disposed of, the proper
among other things, an attestation clause and
objects of his bounty, and the character of the testamentary act. (n)
acknowledgement before a notary public. This will is ordinarily
executed with the aid of a lawyer. There are witnesses and
3 Requisites of a sound mind: attestation clause.
1. The testator must know the nature of the estate to be disposed of 2. HOLOGRAPH OR HOLOGRAPHIC WILL wills which are
2. He must know the proper objects of his bounty ENTIRELY written, dated and signed in the handwriting of the
3. He must know the character of the testamentary act testator. This also requires NO attestation clause or witnesses
or acknowledgment.
Degrees of Mental Incapacity or Incapacity
1. Idiots IQ average of 25; congenitally and intellectually
ARTICLE 804. Every will must be in writing and executed in a
deficient; considered as of unsound mind in succession
language or dialect known to the testator. (n)
2. Imbecile IQ average of 26 to 50; mentally deficient;
considered as of unsound mind in succession
3. Moron IQ average of 51 to 70; they can do reading and No such thing as oral wills in the Philippines
writing; they can be self-supporting; considered as of sound mind Nuncupative Wills are wills orally made by testator in
in succession contemplation of death and before competent witnesses.
Nuncupative wills are not recognized in the Philippines.
GENERAL RULE: Testamentary incapacity invalidates the whole will The presumption is that the testator knew the language
EXCEPTION: If the incapacity proceeds from a delusion on a particular used in writing the will
subject and the product of such delusion might be declared invalid There is no statutory requirement that the will should
without affecting other portions of the will allege that the language used therein is understood by the
testator
ARTICLE 800. The law presumes that every person is of sound There is no need to state in the Attestation clause that the
mind, in the absence of proof to the contrary. will is in the language or dialect known to the testator
The burden of proof that the testator was not of sound mind at That the will is in a language known to the testator can be
the time of making his dispositions is on the person who opposes the proved by extrinsic evidence or even by parol or oral evidence
probate of the will; but if the testator, one month, or less, before If the will is executed in the locality where the testator
making his will was publicly known to be insane, the person who lives, it is presumed that indeed the testator during his lifetime
maintains the validity of the will must prove that the testator made it knew or understood the language or dialect in that locality
during a lucid interval. (n) The testator must know the language or dialect. No
amount of interpretation or explanation will cure the defect
Attesting witnesses are not required to know the language
When testator is presumed of unsound mind:
used in the body of the will
(1) When the testator, one month, or less, before making his will was
publicly known to be insane;
(2) When the testator was judicially declared insane before making his ARTICLE 805. Every will, other than a holographic will, must be
will; subscribed at the end thereof by the testator himself or by the
(3) When the testator has Insanity of a general or permanent nature testator's name written by some other person in his presence, and
shown to have existed at one time. by his express direction, and attested and subscribed by three or
more credible witnesses in the presence of the testator and of one
How to establish evidence of soundness of mind? another.
1. You may use the testimony of the notary public The testator or the person requested by him to write his name
2. The testimony of the attesting witnesses and the instrumental witnesses of the will, shall also sign, as
3. The testimony of the attending physician aforesaid, each and every page thereof, except the last, on the left
4. The testimony of other witnesses margin, and all the pages shall be numbered correlatively in letters
placed on the upper part of each page.
The attestation shall state the number of pages used upon
ARTICLE 801. Supervening incapacity does not invalidate an
which the will is written, and the fact that the testator signed the will
effective will, nor is the will of an incapable validated by the
and every page thereof, or caused some other person to write his
supervening of capacity. (n)
name, under his express direction, in the presence of the
instrumental witnesses, and that the latter witnessed and signed the
Testator must be of unsound mind AT THE TIME of the will and all the pages thereof in the presence of the testator and of
execution of the will one another.
This is the PRINCIPLE OF SUPERVENING CAPACITY If the attestation clause is in a language not known to the
witnesses, it shall be interpreted to them. (n)
ARTICLE 802. A married woman may make a will without the
consent of her husband, and without the authority of the court. (n) 1. Article 805 only applies to notarial wills
2. The requirements under Article 805 are to be strictly
ARTICLE 803. A married woman may dispose by will of all her construed
separate property as well as her share of the conjugal partnership or
absolute community property. (n) Formal Requirements under Article 805:
1. Subscribed at the end by the testator
himself or the testators name is written by some other
6
person in the presence and under the express direction of a) To guard against fraud;
the testator b) To forestall any attempt to
Subscription means the physical act of suppress or substitute any of the pages;
signing c) To afford means of
E-signatures cannot be affixed in a will detecting the loss of any of its pages;
because e-signatures are applicable only to transactions and d) To prevent any increase or
contracts decrease in the pages.
Signature must appear not the physical
end but at the logical end of the will ATTESTATION
The presence of additional dispositions in It is the act of
a notarial will after the signature of the testator invalidates witnessing the execution of the will. It is a mental act.
the entire will because it affects the form Attestation
2. Attested and subscribed by three or more clause is that clause of an ordinary or notarial will wherein the
credible witnesses in the presence of the testator and of witnesses certify that the instrument has been executed before
one another them and the manner of execution of the same
in the presence of the testator and of What do the
one another not actually seeing but in a position to see if subscribing witnesses attest to?
you want to see without any physical obstruction 1. They attest to the genuineness of the signature of the
testator
2. They attest to the due execution of the will
What should
the attestation clause state?
1. The number
ATTESTATION SUBSCRIPTION of pages used upon which the will is written
Consists in witnessing the testators The signing of the witnesses 2. The fact that
execution of the will in order to name upon the same paper the testator signed the will and every page thereof, or
see and take note mentally that for the purpose of caused some other person to write his name, under his
those things are done which the identification of such paper as express direction;
statutes require for the execution a will executed by the 3. The signing
of the will and that the signature testator. by the testator or by the person requested by him in the
of the testator exist as a fact. presence of the instrumental witnesses; and
Mental act of the senses. You see, Mechanical act of the hand. 4. That the
smell, feel etc. instrumental witnesses witnessed and signed the will and
all he pages thereof in the presence of the testator and of
The purpose is to render available The purpose is identification. one another.
proof of the authenticity of the will
and its due execution. ARTICLE 806. Every will must be acknowledged before a
The act of the witnesses May be the act of the testator notary public by the testator and the witnesses. The notary public
when the testator signs the shall not be required to retain a copy of the will, or file another with
will or the witnesses if the the office of the Clerk of Court. (n)
witnesses affixed their
signature in the will. Acknowled
To attest a will is to know that it To subscribe a paper gment is a statement made by the notary public that the
was published as such and to published as a will is only to testator and the witnesses have personally come before him,
certify the fact required to write on the same paper then that they voluntarily executed the will and that they understood
constitute an actual or legal names of the witnesses for the contents.
publication. the sole purpose of To
identification. acknowledge means to admit, to avow, to own as genuine
A
Tests of Presence holographic will need not be acknowledged before a notary
a. Test of vision public
b. Test of position The testator
c. Test of mental apprehension acknowledges the execution of the will. The witnesses
d. Test of available senses acknowledge the attestation clause.
Acknowledg
3. The testator or the person requested by him ment need not be made in the presence of the testator and
to write his name and the credible witnesses of the will each and everyone of the witnesses. It is just required that the
shall sign each and every page of the will, on the left testator and the witnesses appear before the notary public, not
margin, except the last page actually at the same time
Marginal witnesses are also the It is not
subscribing witnesses required that the notary public before whom the will is
Purpose of the signing at the left-hand acknowledged be present during the execution of the will
margin of the will is to identify the pages and to prevent Absence of
fraud an acknowledgment is a fatal defect
GENERAL RULE: Absence of signature on the first page of the will
invalidates the will. ARTICLE 807. If the testator be deaf, or a deaf-mute, he must
EXCEPTIONS: personally read the will, if able to do so; otherwise, he shall
1. If the will contains only one page, then logically that one designate two persons to read it and communicate to him, in some
page already has the signature of the testator because he is practicable manner, the contents thereof. (n)
required to sign at the end of the disposition and that also
contains the signatures of the witnesses in the attestation clause.
2. Inadvertent lifting of pages. ARTICLE 808. If the testator is blind, the will shall be read to
him twice; once, by one of the subscribing witnesses, and again, by
4. All the pages shall be numbered correlatively the notary public before whom the will is acknowledged. (n)
in letters placed on the upper part of each page
As long as it the page number has a ARTICLE 809. In the absence of bad faith, forgery, or fraud, or
physical location, the will is still valid. The page number may undue and improper pressure and influence, defects and
even be incorporated in the text of the document itself imperfections in the form of attestation or in the language used
If the will has only one page, the will is therein shall not render the will invalid if it is proved that the will was
valid because you can easily detect whether there is loss of in fact executed and attested in substantial compliance with all the
pages because if the one page is lost then there is no will to requirements of article 805. (n)
speak of
Purpose of numbering the pages of a
will:
7
Article 809
gives the rule on substantial compliance with respect to the Requisites in the execution of holographic wills:
attestation clause 1. It must be written in a language or dialect known to the
There is testator
substantial compliance when there has been an HONEST 2. It must be ENTIRELY written by the testator;
ATTEMPT on the part of the testator to comply with the formal 3. It must be dated in the hand writing of the testator;
requisites provided by law but the compliance is only substantial 4. It must be signed in the hand writing of the testator; and
and not literal but the purpose of the law is substantially 5. It must be with animus testandi.
accomplished although not strictly followed
As to marginal ARTICLE 811. In the probate of a holographic will, it shall be
signatures, there is no particular requirement that it should really necessary that at least one witness who knows the handwriting and
appear on the left margin because the only purpose of marginal signature of the testator explicitly declare that the will and the
signatures is for identification. signature are in the handwriting of the testator. If the will is
As to attesting contested, at least three of such witnesses shall be required.
signatures, the attesting witnesses are supposed to own the In the absence of any competent witness referred to in the
statements mentioned in the attestation clause. Therefore, their preceding paragraph, and if the court deem it necessary, expert
signatures should appear at the bottom of the attestation clause. testimony may be resorted to. (691a)
If you just write on the margin, the purpose here is not to own
the statements mentioned here but just to identify this page, later Probate is the allowance of the will by the court after its
on, as the same page which you attested before. due execution is proved
Questions addressed during probate proceedings: question
Requisites of Article 809: of identity, question of testamentary capacity and question of
1. The defects and imperfections refer to the form of the due execution
attestation or the language used therein; If probate is UNCONTESTED, one witness who knows the
2. There is no bad faith, forgery or fraud, or undue or improper hand writing of the testator must be presented and who must
pressure and influence; explicitly declare that the will and the signature are in the
3. The will was executed and attested in substantial compliance handwriting of the testator. EXPLICIT meaning you must
with all the requirements; and possibly and unconditionally declare
4. The fact of such execution and attestation is proved. If probate is CONTESTED, at least 3 of such witnesses
should be presented
Defects or imperfections excused under Article 809: A photocopy or carbon copy of a holographic is allowed
1. Defects/imperfections in the form of attestation clause;
2. Defects/imperfections in the language used in the attestation GENERAL RULE: The requirement of presenting an expert witness is
clause. discretionary on the part of the court.
EXCEPTION: It is mandatory when after the presenting witnesses
Formal requisites to be observed in the execution of Notarial who allegedly know the hand writing of the testator, the court still is
Wills: not convince as to the authenticity and genuineness of the will then
1. The will must be in writing (Article 804); the court should require expert testimony.
2. It must be in the language or dialect known to the testator;
3. The will must be signed by the testator or by another person
ARTICLE 812. In holographic wills, the dispositions of the
in his presence or under his express direction (Article 805);
testator written below his signature must be dated and signed by
4. That the signing by the testator or by the person under his
him in order to make them valid as testamentary dispositions. (n)
express direction and in his presence must be done in the
presence of at least 3 instrumental witnesses;
5. That the will is attested and subscribed by at least 3 credible If there is no signature and date, then it is presumed that
witnesses in the presence of the testator and of each and every the testator has no testamentary intent as to his additional
one of them; dispositions
6. That the will must be signed by the testator and by at least 3 If dated without signature, the additional disposition is
credible witnesses on the left hand margin on each and every void. If signed only without date, the additional disposition is
page; void. But the holographic will itself is not affected
7. That the will must be numbered correlatively in letters; With respect to notarial wills, the presence of these
8. That the signing by the 3 witnesses must be done in the additional dispositions will invalidate the entire will because in a
presence of the testator and each and every one of them; notarial will, the signature should appear at the logical end.
9. There must be an Attestation clause stating therein the Those additional dispositions after the signature will invalidate
number of pages upon which the will is written, a statement that the entire will.
the testator signed the will or another person signed the will
under the express direction of the testator; ARTICLE 813. When a number of dispositions appearing in a
10. The will is signed at the left margin by the testator and the 3 holographic will are signed without being dated, and the last
instrumental witnesses in the presence of the testator and of one disposition has a signature and a date, such date validates the
another; dispositions preceding it, whatever be the time of prior dispositions.
11. The will must be acknowledged before a notary public (n)
(Article 806);
12. The will must be read twice by 2 persons designated by the If the dispositions are merely signed without the date, and
testator if the testator is deaf or deaf-mute (Article 807); the last disposition is signed and dated, the effect is that it
13. If the testator is blind the will must be read to him once, by validates the disposition preceding it.
one of the subscribing witnesses, and again, by the notary public If the additional dispositions in a holographic will are not in
(Article 808); and the handwriting of the testator and they are not signed by the
14. There must be substantial compliance with all the testator, then, these additional dispositions are not valid but the
requirements of the law (Article 809). will itself remains valid.
But, if these additional dispositions are signed by the
ARTICLE 810. A person may execute a holographic will which testator, the testator is owning or adopting the additional
must be entirely written, dated, and signed by the hand of the testator dispositions as his own. They will now form part of the will
himself. It is subject to no other form, and may be made in or out of because it now owned by the testator or adopted. In that case,
the Philippines, and need not be witnessed. (678, 688a) the entire will is void. The will now is not entirely in the
handwriting of the testator.
A holographic will is a will that is entirely written, dated Signed but not dated and the last disposition is signed and
and signed by the hand of the testator himself dated validated
It is important to know the date of execution because after Date only and the last disposition is dated and signed
the effectivity of the Spanish Civil Code, which was overtaken by only the last disposition is valid, all the previous dispositions are
the Code of Civil Procedure August 7, 1901 August 1950 void because the law says signed not dated. Only the
holographic wills, during that period, were not allowed. disposition unsigned is invalid.
Strictly speaking, in notarial wills, attestation clause is not Not signed and not dated even if the last disposition is
part of the will because it contains no dispositions. The fact that signed and dated void
the attestation clause is typewritten will not invalidate the will.
8
ARTICLE 814. In case of any insertion, cancellation, erasure or

alteration in a holographic will, the testator must authenticate the same A blind person, under Article 808, can be a testator. But
by his full signature. (n) he cannot be a witness
The insertion, cancellation erasure or alteration mentioned in ARTICLE 821. The following are disqualified from being witnesses
Article 814 are the ones written in the hand writing of the testator to a will:
Insertion, cancellation, erasure or alteration, is not per se (1) Any person not domiciled in the Philippines;
prohibited as long as they are authenticated by the full signature (2) Those who have been convicted of falsification of a document,
of the testator perjury or false testimony. (n)
If the insertion, cancellation, erasure or alteration does not
bear the signature of the testator: Qualification of witnesses to a will:
GENERAL RULE: Only the erasure or insertion is void. The entire 1. He must be of sound mind
will itself is valid. 2. At least 18 yrs of age
EXCEPTION: When this insertion, cancellation, erasure or 3. Not blind, deaf or dumb
alteration is made in an essential part of the will. When this 4. Able to read and write;
insertion, cancellation, erasure or alteration will affect the essence 5. Domiciled in the Philippines
of the will then not only the insertion, cancellation, erasure or 6. Not convicted of falsification of document, perjury of false
alteration is void but the entire will itself. testimony
*** Articles 815, 816 and 817 were previously discussed under Essential elements of domicile:
extrinsic validity of wills from the viewpoint of place or country 1. The fact of residing, or the physical presence in a fixed place
2. The intention of remaining permanently, or the animus manendi
ARTICLE 818. Two or more persons cannot make a will jointly, or
in the same instrument, either for their reciprocal benefit or for the These disqualifications apply only if the will is executed in
benefit of a third person. (669) the Philippines
Conviction here should be by final judgment
JOINT WILL is one wherein the same testamentary If pardoned and the pardon is by reason of innocence then
instrument is made as the will of 2 or more persons and it is you become qualified again to become a witness to a will
jointly executed and signed by them. because when you were acquitted because of innocence, that
MUTUAL WILLS or RECIPROCAL WILLS are wills of 2 means you are trustworthy as witness.
persons wherein the disposition of one is made in favor of the If the pardon is by reason of an executive clemency, you
other and the other also makes dispositions in favor of the other. are still disqualified because the pardon erases only the penalty
This is also called TWIN WILLS. The Mutual or reciprocal wills or the civil consequences of the conviction but it does not
are embodied in separate instruments. change the fact that you are dishonest and untrustworthy.
When the 2 dispositions are made in the same will, it A notary public cannot be one of the attesting witnesses
becomes a joint will. Now, we have a Joint and Mutual will.
When you have a Joint and Mutual will, it is prohibited under ARTICLE 822. If the witnesses attesting the execution of a will
Article 818. are competent at the time of attesting, their becoming subsequently
Article 818 may cover a joint and mutual will or joint will incompetent shall not prevent the allowance of the will. (n)
wherein the benefit is not for the 2 parties who execute the will
but for a third person. As long as the witness is qualified at the time of the
Not all mutual and reciprocal wills are joint wills. execution of the will, it does not matter if subsequently he
becomes incapacitated. The validity of the will remains.
Why are joint wills not allowed?
1. It tends to convert a will into a contract ARTICLE 823. If a person attests the execution of a will, to
2. It destroys the character of wills as a strictly personal act whom or to whose spouse, or parent, or child, a devise or legacy is
3. It runs counter to the idea that wills are essentially revocable given by such will, such devise or legacy shall, so far only as
or ambulatory; concerns such person, or spouse, or parent, or child of such person,
4. It may subject one to undue influence. It induces Parricide. or any one claiming under such person or spouse, or parent, or
5. It makes probate more difficult especially if the testators dies child, be void, unless there are three other competent witnesses to
at different times. such will. However, such person so attesting shall be admitted as a
witness as if such devise or legacy had not been made or given. (n)
ARTICLE 819. Wills, prohibited by the preceding article, executed
by Filipinos in a foreign country shall not be valid in the Philippines, This article refers to an attesting witness to the execution
even though authorized by the laws of the country where they may of the will but at the same time he is a devisee or legatee in
have been executed. (733a) that will
The will is still valid but he is disqualified from receiving
Joint wills executed by a Filipino in a foreign country are not the devise or legacy
valid in the Philippines, even though allowed in the place of Even if the attesting witness is not the devisee or legatee
execution himself but his spouse, the parents, the child of that witness, so
Article 819 is not applicable to foreigners executing their will. the mother of the attesting witness, the will is still valid but
If a joint will is executed by a foreigner abroad and it is valid in such person cannot receive the legacy or devise
the place of execution, it shall be recognized by our courts, But this article will not apply if there are more than 3
because of lex loci celebrationes (law of the place of execution). witnesses.
If it is valid in the place of execution it is valid here in the In voluntary heirs, the inheritance which they are to
Philippines. receive under the will is void. Voluntary heirs are those who
If a joint will is executed by a Filipino and a foreigner, the receive by virtue of the liberality by the testator but they do not
will is void as to the Filipino and valid with respect to the receive something if the testator does not provide for them.
foreigner. As to compulsory heirs, they may still get their legitime.
If a foreigner executes a joint will in the Philippines: But with respect to the free portion accorded to the compulsory
1st view: It is valid because if it is allowed under his national heirs in the will, it is void if such compulsory heir is also one of
law, it should be allowed here in the Philippines under Art 817. the 3 witnesses.
2nd view: By reason of public policy, it is void because under
Article 17, our laws cannot be subrogated by the laws ARTICLE 824. A mere charge on the estate of the testator for the
promulgated in other countries. payment of debts due at the time of the testator's death does not
prevent his creditors from being competent witnesses to his will. (n)
SUBSECTION 4
Witnesses to Wills A creditor is not disqualified to receive if the testator
provides in the will that such portion shall be given to the said
ARTICLE 820. Any person of sound mind and of the age of creditor as payment for an obligation. Whether or not he is
eighteen years or more, and not blind, deaf or dumb, and able to read instituted in the will, the creditor is entitled to be paid for his
and write, may be a witness to the execution of a will mentioned in credit.
article 805 of this Code. (n)
9
SUBSECTION 5 1. The signature of the testator;
Codicils and Incorporation by Reference 2. The signature of the witnesses
ARTICLE 825. A codicil is a supplement or addition to a will, Requirements that can be proved by extrinsic evidence:
made after the execution of a will and annexed to be taken as a part 1. That the document is inexistence at the time of the
thereof, by which any disposition made in the original will is explained, execution of the will;
added to, or altered. (n) 2. That the document is the one being referred to in the will.
The validity of the codicil depends upon the validity of the GENERAL RULE: Only notarial wills shall have incorporation by
will inference because:
If the provisions of the will and the codicil are inconsistent, 1. These documents under Article 827 have to
the codicil should prevail because the purpose of a codicil is to be signed by the testator and the witnesses. In notarial wills,
amend, alter, or add to a previously executed will. there are witnesses. In holographic wills, there are no
witnesses.
CODICIL NEW WILL 2. In a notarial will, the contents can either be
in the handwriting of the testator, typewritten or a combination.
When you execute a codicil after When you say after executing
When you say documents to be incorporated into the will, these
you execute a will, the codicil is the first will, you again execute
documents may either be typewritten or in the hand of the
taken as a part of the will. another will then the new will
testator.
exists independently of the
EXCEPTION: It may be a holographic will:
original will and without
1. When the holographic will has at least 3 witnesses, there
reference to the original will.
can be incorporation by reference because by then, the
The codicil explains, adds to, Has no regard to the previous
subscribing witnesses in the holographic will, although a
supplements, and alters the will, it does not explain, or add
surplusage, can sign the document to be incorporated.
provisions in the original will. to, or supplement the original
2. Even if there are no witnesses but the document to be
will. .
incorporated are entirely written, signed and dated in the hand
The codicil may revoke only a When you execute a new will,
of the testator. In this case, what we have is a purely
PART of the original will. the ENTIRE previous will is
holographic will. You may have a valid incorporation by
revoke as a general rule.
reference.
Because a codicil is taken as a When you execute a new will,
part of the original will, then the they are separate. The one SUBSECTION 6
original will and the codicil are revoking the other. Revocation of Wills and Testamentary Dispositions
taken as one.
ARTICLE 828. A will may be revoked by the testator at any
ARTICLE 826. In order that a codicil may be effective, it shall be time before his death. Any waiver or restriction of this right is void.
executed as in the case of a will. (737a)
2 kinds of Codicil: Revocation is an act of the mind terminating the

1. NOTARIAL CODICIL it follow the rules required by law for potential capacity of a will to operate at the death of the
notarial will. testator manifested by some outward and visible act or sign
2. HOLOGRAPHIC CODICIL it follow the rules required by law symbolic thereof
for holographic will GENERAL RULE: The testator can always revoke his will during his
lifetime
If the codicil does not follow the requirements of the law, the EXCEPTION: If the testator during his lifetime loses testamentary
codicil is void. But the invalidity of the codicil will not affect the capacity or becomes of unsound mind.
validity of the will.
ARTICLE 829. A revocation done outside the Philippines, by a
ARTICLE 827. If a will, executed as required by this Code, person who does not have his domicile in this country, is valid when
incorporates into itself by reference any document or paper, such it is done according to the law of the place where the will was made,
document or paper shall not be considered a part of the will unless the or according to the law of the place in which the testator had his
following requisites are present: domicile at the time; and if the revocation takes place in this
(1) The document or paper referred to in the will must be in existence country, when it is in accordance with the provisions of this Code.
at the time of the execution of the will; (n)
(2) The will must clearly describe and identify the same, stating
among other things the number of pages thereof;
If the revocation is made within the Philippines we only
(3) It must be identified by clear and satisfactory proof as the
have to comply with the Philippine law regardless of the
document or paper referred to therein; and
nationality or domicile
(4) It must be signed by the testator and the witnesses on each and
If the revocation is made outside the Philippines by a non-
every page, except in case of voluminous books of account or
resident (Filipino or foreigner):
inventories. (n)
1. The law of the place where the will was MADE
(not where the will is revoke)
This is the Rule on Incorporation by Reference. It is 2. The law of the place of the place of DOMICILE
incorporation of an intrinsic or separate document or paper into a of the testator
will by reference so as to become a part thereof and probated as If the revocation is made outside the Philippines by a
such. resident (Filipino or foreigner):
1. The law of the place of the REVOCATION
Requisites of Incorporation by Reference: 2. The law of the place of DOMICILE
1. The document or paper referred to in the will must In revocation, the national law has no revocation
be in existence at the time of the execution of the will.
2. The will must clearly describe and identify the
ARTICLE 830. No will shall be revoked except in the following
same, stating among other things the number of pages thereof
cases:
3. It must be identified by clear and satisfactory proof
(1) By implication of law; or
as the document or paper referred to therein
(2) By some will, codicil, or other writing executed as provided in
4. It must be signed by the testator and the
case of wills; or
witnesses on each and every page, except in case of voluminous
(3) By burning, tearing, cancelling, or obliterating the will with the
books of account or inventories
intention of revoking it, by the testator himself, or by some other
person in his presence, and by his express direction. If burned, torn,
Requirements to be stated in the face of the will:
cancelled, or obliterated by some other person, without the express
1. The fact that you are referring to the document or paper
direction of the testator, the will may still be established, and the
2. The clear description and identification of the document
estate distributed in accordance therewith, if its contents, and due
3. The number of pages
execution, and the fact of its unauthorized destruction, cancellation,
or obliteration are established according to the Rules of Court. (n)
Requirements to appear on the face of the document to be
incorporated or being referred to:
10
3 ways of revocation: 2. Prove that the will was inexistent at the time of the death
1. By implication of law of the testator or that it was fraudulently destroyed or lost
2. By some will, codicil, or other writing executed as without the knowledge of the testator or it was accidentally lost
provided in case of will (by subsequent instrument) or destroyed by the testator without intent to revoke.
3. By means of an overt act 3. Prove the contents clearly and distinctly by copies or
without copy by recital of content by some document or the
Acts considered by law as an act of revocation: testimony of the witnesses
1. Article 957 of the NCC When after the testator
has made a will, he sells, donate the legacy or devise ARTICLE 831. Subsequent wills which do not revoke the
2. Article 106 of the FC Provisions in the will in previous ones in an express manner, annul only such dispositions in
favor of the spouse who has given cause to legal separation the prior wills as are inconsistent with or contrary to those contained
3. Article 1032 of the NCC - When an heir, legatee or in the later wills. (n)
devisee commits an act of unworthiness
4. Article 936 of the NCC When a credit has been Article 831 talks about Implied Revocation made in a
given as a legacy is judicially demanded by the testator subsequent instrument
5. Article 854 of the NCC Preterition There is IMPLIED REVOCATION when the testator,
after having executed a will executes another will or codicil
Kinds of Revocation by Subsequent Instrument: which the will or codicil does not contain a revocatory clause
1. EXPRESS REVOCATION When the new will or codicil but its contents are inconsistent with the former will then there
contains a revocatory clause. is implied revocation
2. IMPLIED REVOCATION When the provisions in the
subsequent wills or codicil are completely inconsistent with the
ARTICLE 832. A revocation made in a subsequent will shall
provisions in the previous will.
take effect, even if the new will should become inoperative by
reason of the incapacity of the heirs, devisees or legatees designated
Requisites for the application of revocation by subsequent
therein, or by their renunciation. (740a)
instrument:
1. There must be testamentary capacity AT THE TIME
of revocation Article 832 is the DOCTRINE OF ABSOLUTE
2. The subsequent instrument must be valid REVOCATION
3. The subsequent will or instrument must contain a On the other hand, the DOCTRINE OF DEPENDENT
revocatory clause or be incompatible with the former will thereby RELATIVE REVOCATION is where the act or destruction is
showing intent to revoke connected to the making of a will so as squarely to raise the
4. The subsequent will or instrument must be inference that the testator meant the revocation of the old
admitted to probate would depend upon the efficacy of the new disposition and if
for any reason the new will intended to be made as a substitute
Requisites for the application of revocation by an overt act: is inoperative, the revocation fails and the original will is in full
1. The testator has testamentary capacity AT THE force and effect
TIME of performing the act There is no revocation by overt act if the destruction of
2. The act must be any of the overt act mentioned the first will was prompted by a false belief that the subsequent
under Article 830: will executed was valid
a. BURNING It is If the destruction is AFTER the execution of the
not required that the whole instrument is completely burned. subsequent will, the Doctrine of Dependent Relative Revocation
Even if only a portion of the document is burned, it is applies. He destroyed the 1 st will after having executed the 2 nd
considered to be an act of revocation. will.
b. TEARING either But if he destroyed the 1st will LONG BEFORE the
you tear or cut by means of your hands or scissors. A slight execution of the subsequent will, you can no longer apply the
cut or a slight tear is sufficient to be considered an act of doctrine. The will here was destroyed by an overt act, so it is
revocation. The greater the cut the greater is the absolute.
presumption that there is animu revocandi on the part of the
testator. If the codicil is torn, it is an act of tearing and both ARTICLE 833. A revocation of a will based on a false cause or
the will and codicil are revoked because a codicil is part of an illegal cause is null and void. (n)
the will.
c. CANCELING Article 833 is another aspect of the Doctrine of Dependent
when you place a mark or a line across the writings. If you Relative Revocation. You revoke the will based on a false belief
place a mark or a line on the spaces, there is no When the revocation is made by a subsequent instrument
cancellation. the false cause must be stated in the face of the will
d. OBLITERATING
it is when you erase thru eraser or like you blot out. If what ARTICLE 834. The recognition of an illegitimate child does not
is blotted out is just some provisions, these provisions are lose its legal effect, even though the will wherein it was made should
considered to be revoked but the will remains valid be revoked. (741)
3. The act must be a completed act (at least a completion of the
subjective phase of the overt act) Recognition takes place immediately upon the execution of
GENERAL RULE: Even if the tearing is not complete or the burning the will
is not complete then there is an act of revocation. Recognition is not disposition of property
EXCEPTION: When the testator starts burning his will but he
realized that he really does not want to revoke his will. So SUBSECTION 7
before the will is completely burned, he desists from burning Republication and Revival of Wills
and that is voluntary desistance on his part. In this case, even
if the will contains a slight burn or slight tear there is NO ACT
REPUBLICATION REVIVAL
OF REVOCATION because of the voluntary desistance by the
It is the re-establishment by the It is the re-establishment to
testator.
testator of previously revoked will validity by operation of law
4. There must be intent to revoke or animus revocandi
or one invalid for want of proper of a previously revoked will.
5. The revocation must be done by the testator himself or by some
execution as to form or for other
other persons in his presence and under his express direction
reasons so as to give validity to said
will
PRESUMPTION: A duly executed will has not been revoked
It involves the act of the testator. It involves the act of law,
Burden of proof that the will is revoked lies upon the one
operation of law.
who opposes the probate of the will which that person alleges has
been revoked There is a will previously revoked or A will previously revoked.
a will valid as to form or a will
What should be proven during the probate of a lost or invalid for any other cause
destroyed notarial will:
1. Establish compliance with the formalities required by law
under Articles 804-809 of the NCC
11
ARTICLE 835. The testator cannot republish, without reproducing Subject to the right of appeal, the allowance of the will, either
in a subsequent will, the dispositions contained in a previous one which during the lifetime of the testator or after his death, shall be
is void as to its form. (n) conclusive as to its due execution. (n)
Article 835 gives the rule on express republication or Probate is the act or process of proving before a
republication by re-execution competent court the due execution of an instrument purported
Republication is the re-establishment by the testator of a to be the last will and testament of a deceased for its allowance
previously revoked will or one invalid for want of proper execution by the said court, that is, for its official recognition and the
as to form or for other reasons so as to give validity to said will carrying out of its provision in so far as they are in accordance
If the testator previously executed a void will and he would with law.
want to give life to this void will, then he has to republish his will. A probate proceeding is a special proceeding. It is a
Or, if previously, the testator revoked his will and he would proceeding in rem.
like to give life to this revoked will. So, he has to republish his In a probate proceeding, the inquiry as a General Rule is
will. limited only to the EXTRINSIC VALIDITY of the will
Extrinsic validity means:
2 Kinds of Republication: 1. whether or not the testator was of sound mind
1) EXPRESS REPUBLICATION/ when he executed the will
REPUBLICATION BY RE-EXECUTION is a republication in a 2. whether or not he is 18 years or above
subsequent will a previous one which is void as to form (Article 3. whether or not the will complied with the
835) formalities under Articles 804-809 with respect to notarial
2) IMPLIED will
REPUBLICATION/REPUBLICATION BY REFERENCE is the 4. whether or not the will is entirely written, dated
execution by a codicil referring to a previously revoked will or a and signed in the handwriting of the testator with respect
will valid as to form but void because of some extrinsic defects to holographic will
like lack of testamentary capacity (Article 836) The rule on ESTOPPEL and the STATUTE OF LIMITATION
do not apply in probate
ARTICLE 836. The execution of a codicil referring to a previous Probate is MANDATORY
will has the effect of republishing the will as modified by the codicil. (n) Extrajudicial Settlement is NOT allowed when there is a
will
If the old will is void as to form, the only way to republish it ANTE MORTEM PROBATE means a probate done during
is by re-execution. the lifetime of the testator
If old will is void but not as to form because the testator POST MORTEM PROBATE means a probate done after the
lacks testamentary capacity, it can be republished by re-execution death of the testator
or it can be republished by reference.
2 aspects of POST MORTEM PROBATE:
1. PROBATE PROPER is only concerned on the due
execution of the will and the testamentary capacity of the
testator
ARTICLE 837. If after making a will, the testator makes a second
2. DETERMINATION OF THE LEGALITY OF THE
will expressly revoking the first, the revocation of the second will does
PROVISION AND THE DISTRIBUTION OF THE ESTATE.
not revive the first will, which can be revived only by another will or
codicil. (739a)
GENERAL RULE: During probate proper, the probate court HAS NO
JURISDICTION to entertain other issues except on issues on whether
There is no revival if the first will is expressly revoked by the or not the will was duly probated in compliance with the formalities
2nd will required by law and whether or not the testator has testamentary
There is revival if the first will is IMPLIEDLY REVOKED by a capacity at the time he executed the will
second will EXCEPTION: Summary on issues that may be passed upon by
PRINCIPLE OF INSTANTER states that when the will is the probate court (intrinsic validity):
EXPRESSLY revoked by a 2 nd will, the revocation of the 2 nd will by 1. Ownership
the 3rd will will not revive the 1st will. This is because revocation a. when the testator has disposed of property
takes effect immediately. It does not wait for the death of the which is not his; or
testator to become effective because revocation does not take the b. whether or not a certain property is included in
form of testamentary disposition. the estate.
2. Filiation
a. whether or not the oppositor has personality to
intervene; or
b. whether or not the will has been revoked
3. Whether or not there was preterition
But decisions of the court pertaining to these

questions are only provisional.
Matters that may be passed upon by the probate court:

1) Questions of identity
2) Due Execution
3) Question as to the testamentary capacity
PROBATE OF HOLOGRAPHIC PROBATE OF NOTARIAL

WILL WILL
In the probate of In the probate of notarial
holographic wills, if there is no wills, when there is no contest,
SUBSECTION 8
contest, it is enough that at least at least 1 subscribing witness
Allowance and Disallowance of Wills
1 witness explicitly declares that should testify as to the execution
the will is in the handwriting and of the will. When there it is
ARTICLE 838. No will shall pass either real or personal property signature of the testator. When contested, ALL of the subscribing
unless it is proved and allowed in accordance with the Rules of Court. the will is contested, there must witnesses plus the notary public
The testator himself may, during his lifetime, petition the court be at least 3 of witnesses. In must testify. If all of the
having jurisdiction for the allowance of his will. In such case, the the absence of such witnesses, subscribing witnesses and the
pertinent provisions of the Rules of Court for the allowance of wills expert testimony may be notary public are:
after the testator's death shall govern. i resorted to or even if there is no 1.dead;
The Supreme Court shall formulate such additional Rules of Court contest, still expert testimony 2.insane; or
as may be necessary for the allowance of wills on petition of the may be resorted to. 3.they are all absent in the
testator. Philippines or
4.testify against the due
12
execution of the will; or
5.they do not remember having Institution refers to the free portion
attested the execution of the
will; or Characteristics of an instituted heir?
6.they are of doubtful credibility 1. The instituted heir constitutes the relation of the personality, to
then, other witnesses may be continue the personality of the testator but only in relation to the
resorted to. inheritance without being personally liable for the death of the
testator.
2. The instituted heir acquires the right limited to the disposable
LOST/DESTROYED LOST/DESTROYED portion and he cannot impair the legitime.
HOLOGRAPHIC WILL NOTARIAL WILL
When it comes to a In notarial wills, even if there Requisites for an institution to be valid:
holographic will, there must be a is no copy, the notarial will may 1. The will must be extrinsically valid
photocopy or carbon copy of the be probated because the 2. The institution must be intrinsically valid
holographic will. If there is no contents of a notarial will may 3. The institution must be effective
copy of the holographic will, be proved by the testimonies of
even if the reason why the at least 2 witnesses to clearly ARTICLE 841. A will shall be valid even though it should not
holographic will was lost or and distinctly proved the contain an institution of an heir, or such institution should not
destroyed was due to the act of contents of the notarial will. comprise the entire estate, and even though the person so instituted
another person without intent to should not accept the inheritance or should be incapacitated to
revoke on the part of the NB: As long as there is no succeed.
testator still, no probate of the animus revocandi on the part of In such cases the testamentary dispositions made in
holographic will may be allowed the testator. accordance with law shall be complied with and the remainder of the
because there is no copy. estate shall pass to the legal heirs. (764)
ARTICLE 839. The will shall be disallowed in any of the following A will is valid even though it does not contain an institution of
cases: an heir
(1) If the formalities required by law have not been complied with; Such institution should not comprise the entire estate
(2) If the testator was insane, or otherwise mentally incapable of Even though the person so instituted should not accept the
making a will, at the time of its execution; inheritance or should be incapacitated to succeed
(3) If it was executed through force or under duress, or the influence
of fear, or threats; ARTICLE 842. One who has no compulsory heirs may dispose
(4) If it was procured by undue and improper pressure and influence, by will of all his estate or any part of it in favor of any person having
on the part of the beneficiary or of some other person; capacity to succeed.
(5) If the signature of the testator was procured by fraud; One who has compulsory heirs may dispose of his estate
(6) If the testator acted by mistake or did not intend that the provided he does not contravene the provisions of this Code with
instrument he signed should be his will at the time of affixing his regard to the legitime of said heirs. (763a)
signature thereto. (n)
This article is called the freedom of disposition
These grounds are exclusive. However, despite the But this freedom of disposition is not absolute because when
exclusivity given, it seems that there are other grounds which are there are compulsory heirs, the testator has to observe the
minority, revocation and forgery. portion pertaining to the compulsory heirs
1st ground: ARTICLE 843. The testator shall designate the heir by his
In case of notarial wills, formalities under Articles 804- name and surname, and when there are two persons having the
809 same names, he shall indicate some circumstance by which the
In case of holographic wills it must be: instituted heir may be known.
a. entirely written, signed and dated in the Even though the testator may have omitted the name of the
handwriting of the testator heir, should he designate him in such manner that there can be no
b. in the language known to the testator doubt as to who has been instituted, the institution shall be valid.
c. must be executed at the time when holographic (772)
wills are allowed
2nd ground: The best way to designate the heir is by name or surname
This ground refers to the soundness of mind of the
Even if the name is omitted, the designation is still valid as long
testator at the time of execution of the will
as such person can be identified
3rd ground:
If there are 2 or more 2 persons instituted and they have the
This connotes the idea of coercion, mental or physical
same name or corresponds to the same description, Article 789
4th ground:
can be applied:
Undue Influence connotes the idea of coercion by
virtue of which the judgment of the testator is displaced, and he is
ARTICLE 789. When there is an imperfect
induced to do that which he otherwise would not have done.
description, or when no person or property exactly
5th ground:
answers the description, mistakes and omissions
Fraud is the use of insidious words or machinations to
must be corrected, if the error appears from the
convince a person to do what ordinarily he would not have done.
context of the will or from extrinsic evidence,
There is an intent to make a will
excluding the oral declarations of the testator as
6th ground:
to his intention; and when an uncertainty arises
The testator is acting because of his mistake and the
upon the face of the will, as to the application of
testator has no intent to make a will
any of its provisions, the testator's intention is to
There is no intent to make a will
be ascertained from the words of the will, taking
into consideration the circumstances under which
REVOCATION DISALLOWANCE
it was made, excluding such oral declarations. (n)
A voluntary act of the testator. Given by judicial order
May be with or without cause. Must always be for legal a cause.
May be partial or total. Always total. 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
SECTION 2
is a similarity of circumstances in such a way that, even with the use
Institution of Heir
of other proof, the person instituted cannot be identified, none of
them shall be an heir. (773a)
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
Article 843 mentions omissions. Article 844 mentions errors.
him in his property and transmissible rights and obligations. (n)
13
Errors in the name, surname or circumstances would not matter The law presumes that in giving a legacy or devise or
as long as ultimately the court can identify who are really the inheritance, the real motivation or the real cause is the liberality or
heirs intended by the testator generosity of the testator not he false cause.
Any manner maybe resorted to determine the person instituted EXCEPTION: Unless it appears from the will that the testator would
except oral declaration made by the testator not have made such institution if he had known the falsity of such
cause.
ARTICLE 845. Every disposition in favor of an unknown person
shall be void, unless by some event or circumstance his identity According to some authorities in succession, the statement of
becomes certain. However, a disposition in favor of a definite class or Illegal cause for the institution will not invalidate the institution.
group of persons shall be valid. (750a) The illegal cause is deemed not written.
An unknown person is one that cannot be identified. He is not ARTICLE 851. If the testator has instituted only one heir, and
necessarily a stranger the institution is limited to an aliquot part of the inheritance, legal
A disposition in favor of an unknown person who cannot be succession takes place with respect to the remainder of the estate.
identified cannot be given effect The same rule applies, if the testator has instituted several
heirs each being limited to an aliquot part, and all the parts do not
ARTICLE 846. Heirs instituted without designation of shares shall cover the whole inheritance. (n)
inherit in equal parts. (765)
Aliquot part means a fraction or undivided interest
Article 846 refers to PRINCIPLE OF EQUALITY Article 851 should be applied when there is NO INTENTION on
It is presumed that the testator intended to give equal shares to the part of the testator to give the remaining part of the estate.
the heirs instituted. Otherwise, he would have specifically So, only the specific portions mentioned.
mentioned the shares of the heirs had he intended that each heir
shall get different portion or unequal portions ARTICLE 852. If it was the intention of the testator that the
instituted heirs should become sole heirs to the whole estate, or the
GENERAL RULE: Heirs instituted without designation of shares shall whole free portion, as the case may be, and each of them has been
inherit in equal parts. instituted to an aliquot part of the inheritance and their aliquot parts
EXCEPTION: Article 846 cannot apply when there are compulsory together do not cover the whole inheritance, or the whole free
heirs. portion, each part shall be increased proportionally. (n)
ARTICLE 847. When the testator institutes some heirs individually In Article 852, the intention of the testator is to give the entire
and others collectively as when he says, "I designate as my heirs A estate to the instituted heir or heirs but the shares given to the
and B, and the children of C," those collectively designated shall be instituted heirs when added do not comprise the entirety of the
considered as individually instituted, unless it clearly appears that the estate
intention of the testator was otherwise. (769a)
Problem1
This article refers to the PRINCIPLE OF INDIVIDUALITY Q: A, B and C are instituted as heirs: A = 1/4, B = 1/4 and C = 1/4.
As long as the intention to have the estate collectively distributed The testator says that he is giving the entire estate to A, B and C.
does not appear in the will, the presumption is individual The estate is worth P120,000. Does the institution comprise the
institution entire estate? No, because the institution only amounts to 3/4. How
When there are compulsory heirs, you have to first satisfy the do we divide the estate among A, B and C?
portion pertaining to the legitime of the compulsory heirs.
INSTITUTION refers to FREE PORTION A: A = P30,000
B = P30,000
C = P30,000
ARTICLE 848. If the testator should institute his brothers and
-------------
sisters, and he has some of full blood and others of half blood, the
P90,000
inheritance shall be distributed equally unless a different intention
appears. (770a)
P120,000 - 90,000 = P30,000
P30,000 / 3 = P10,000
Remember that brothers and sisters are not compulsory heirs
although they are legal heirs Total share of:
When the testator institutes his brothers and sisters whether or A = P30,000 + 10,000 = P40,000
full blood or half blood they are deemed to have been instituted B = P30,000 + 10,000 = P40,000
equally C = P30,000 + 10,000 = P40,000
------------
INTESTATE SUCCESSION TESTATE SUCCESSION P120,000
The shares of the brothers or There is NO such presumption.
sisters of the full blood, is twice Problem2
as much as those of the half Q: A = 1/6, B = 1/8, C = 2/3. The estate is worth P120,000.
blood. So here there is a
presumption that the affection of A: A = (P120,000 / 6) * 1 = P20,000
the testator for the brothers and B = (P120,000 / 8) * 1 = P15,000
sisters of the full blood is greater C = (P120,000 / 3) * 2 = P80,000
than those of the half blood -------------
P115,000
ARTICLE 849. When the testator calls to the succession a person
and his children they are all deemed to have been instituted A = (20,000 / 115,000) * 5,000 = P 869.565
simultaneously and not successively. (771) B = (15,000 / 115,000) * 5,000 = P 652.179
C = (80,000 / 115,000) * 5,000 = P3,478.826
This article is known as the PRINCIPLE OF SIMULTANEITY ----------------
There is only a presumption. There is nothing which can prevent P5,000.00
the testator from providing in his will that the institution shall be
successive and not simultaneous. Total share of:
A = P20,000 + 869.565 = P20,869.565
ARTICLE 850. The statement of a false cause for the institution of B = P15,000 + 652.179 = P15,652.179
an heir shall be considered as not written, unless it appears from the C = P80,000 + 3,478.862 = P83,478.862
will that the testator would not have made such institution if he had ------------------
known the falsity of such cause. (767a) P120,000.00
GENERAL RULE: The statement of a false cause for the institution of

an heir shall not vitiate the institution. The false cause shall always be
considered as not written.
14
Effects of Preterition
ARTICLE 853. If each of the instituted heirs has been given an 1. It shall annul the institution of heir (Article 854)
aliquot part of the inheritance, and the parts together exceed the 2. The legacy or devise shall be valid in so far as they are not
whole inheritance, or the whole free portion, as the case may be, each inofficious (do not impair the legitime).
part shall be reduced proportionally. (n)
ARTICLE 855. The share of a child or descendant omitted in a
Article 853 is the reverse of Article 852 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
Problem1 necessary must be taken proportionally from the shares of the other
Q: A =1/4, B = 1/8, C = 2/3. The estate is worth P120,000. compulsory heirs. (1080a)
A: A = 1/4 * P120,000 = P30,000
B = 1/8 * P120,000 = P15,000 Article 855 talks about the share of a child or descendant
C = 2/3 * P120,000 = P80,000 omitted in the will.
------------ This article can also be applied when what is at hand is merely
P125,000 an impairment of the legitime, so, you just have to complete
the legitime.
A = (P30,000 / 125,000) * 5,000 = P1,200 Article 855 talks only of the legitime. It has no concern of the
B = (P15,000 / 125,000) * 5,000 = P600 Free Portion.
C = (P80,000 / 125,000) * 5,000 = P3,200
Total share of: ARTICLE 856. A voluntary heir who dies before the testator
A = P30,000 - 1,200 = P28,800 transmits nothing to his heirs.
B = P15,000 - 600 = P14,400 A compulsory heir who dies before the testator, a person
C = P80,000 - 3,200 = P76,800 incapacitated to succeed, and one who renounces the inheritance,
------------- shall transmit no right to his own heirs except in cases expressly
P120,000 provided for in this Code. (766a)
ARTICLE 854. The preterition or omission of one, some, or all of The term voluntary heir here covers also
the compulsory heirs in the direct line, whether living at the time of the legacies or devises. So, if a legacy or devise is given, it
execution of the will or born after the death of the testator, shall annul transmits nothing to the heir of the voluntary heir if the
the institution of heir; but the devises and legacies shall be valid insofar voluntary heir dies before the testator
as they are not inofficious.
If the omitted compulsory heirs should die before the testator, the GENERAL RULE: If a compulsory heir is predeceases, is
institution shall be effectual, without prejudice to the right of incapacitated or renounces or repudiates the inheritance, he
representation. (814a) transmits nothing to his own heirs.
EXCEPTION : Right of Representation
PRETERITION is the total omission generally due to mistake or
oversight by the testator in his will of one, some or all of the This article speaks of an heir who predeceased
compulsory heirs in the direct line living at the time of the the testator, incapacity and one who renounces the inheritance.
testators death. But this article applies by analogy to DISINHERITANCE. A
The omission may be voluntary or involuntary compulsory heir who is disinherited shall transmit no right to his
own heirs except when there is Right of Representation.
Requisites of Preterition
1. The omission from the inheritance must be total or complete SECTION 3
No preterition in the following situations: Substitution of Heirs
a. If the compulsory heir is given a devise or a
legacy, he is not considered preterited even if the ARTICLE 857. Substitution is the appointment of another heir
legacy or devise is worth less than the legitime of the so that he may enter into the inheritance in default of the heir
compulsory heirs. originally instituted. (n)
b. If the estate is worth P100T but the testator says,
I hereby institute my heir to one-half of my estate. Article 857 speaks of substitution where there is appointment
That is the only provision in the will. For example, A is of another heir in default of another heir instituted. If the first
a son, an heir. There is no preterition even if A is not heir cannot inherit for reasons provided for by law, then the
mentioned because something is being left for A in the testator may appoint a substitute in place of the original heir.
inheritance. The substitute will instead get the inheritance which should
c. As long as there is still a balance after all the have pertained to the original heir
provisions in the will have been given effect, there are In substitution, there are also instances wherein both heirs, the
still undisposed properties which the omitted original heir and the substitute inherit. That is covered by the
compulsory heir may partake so there is no preterition. case of what we call the FIDEICOMMISSARY
2. The omission must be the compulsory heir in the direct line SUBSTITUTION
Compulsory heirs: As such, substitution is the appointment of another heir so
1. The children whether legitimate or illegitimate that he may enter into the inheritance in default of the heir
2. The parents in the absence of the children originally instituted or AFTER SUCH HEIR either one after the
A spouse is a compulsory heir but other or all at the same time.
NOT in the direct line
By fiction of law, an adopted child is 2 Concepts of Substitution:
a compulsory heir in the direct line 1. Direct Substitution only one inherits. If the original
3. The omitted compulsory heir must survive the testator. heir defaults, then the substitutes inherit. (Article 857)
2. Indirect Substitution the inheritance is assumed by 2
If the omitted heir died ahead of the testator, there is no heirs. So, one inherits after the other. (Fideicommissary
preterition because by reason of his early death, he is deemed not substitution Article 863)
to have inherited from the testator
However, the omitted compulsory heir dies ahead and he has Purposes of substitution
children who can represent him. There is representation 1. To avoid intestate succession
wherein the representative is exalted to the position of the one 2. To prevent the descent of the estate of the
they are representing. In this case, there is preterition. testator to whom the testator does not want to succeed him in
If there was a donation given to the compulsory heir during the his property whether by right of representation, or by right of
lifetime of the testator, and such heir is omitted from the will, accretion or by right of intestate succession
there is no preterition because he is not omitted from the 3. To allow the testator greater freedom to help or
inheritance. There must be omission from the inheritance, not reward those who by reasons of services rendered are more
merely from the will. worthy of his affection and deserving of his bounty than
The donations made to compulsory heirs during the lifetime of the intestate heirs
testator, upon the death of the testator, the values of these 4. To enable the testator to make arrangements
donations are brought back to the value of the estate through for his succession in the manner most convenient for him
collation.
15
5. To realize some honorable purpose of the testator ARTICLE 862. The substitute shall be subject to the same
like the maintenance of the property within his property because charges and conditions imposed upon the instituted heir, unless the
in substitution, the testator to some extent may preserve the testator has expressly provided the contrary, or the charges or
property within the confines of his own immediate family and conditions are personally applicable only to the heir instituted. (780)
prevent the estate from descending to the other legal heirs like
the brothers or sisters GENERAL RULE: The substitute shall be subject to the same charges
and conditions imposed upon the instituted heir.
You can have a substitute for a legatee or devisee because Article EXCEPTIONS:
857 applies to the free portion and not to the legitime 1. When the testator has expressly provided the contrary
2. When the charges or conditions are only personally
ARTICLE 858. Substitution of heirs may be: applicable to the person instituted
(1) Simple or common;
(2) Brief or compendious; ARTICLE 863. A fideicommissary substitution by virtue of
(3) Reciprocal; or which the fiduciary or first heir instituted is entrusted with the
(4) Fideicommissary. (n) obligation to preserve and to transmit to a second heir the whole or
part of the inheritance, shall be valid and shall take effect, provided
Simple or Common - Article 859 such substitution does not go beyond one degree from the heir
Brief or Compendious Article 860 originally instituted, and provided further, that the fiduciary or first
Reciprocal Article 861 heir and the second heir are living at the time of the death of the
Fideicommissary Article 863 testator. (781a)
ARTICLE 859. The testator may designate one or more persons Simple substitution, brief or compendious substitution and
to substitute the heir or heirs instituted in case such heir or heirs reciprocal substitution are examples of direct substitution,
should die before him, or should not wish, or should be incapacitated where the substitute inherits in default of the heir originally
to accept the inheritance. instituted. Their enjoyment of the property is in the alternative.
A simple substitution, without a statement of the cases to which it Fideicommissary substitution is an indirect substitution,
refers, shall comprise the three mentioned in the preceding paragraph, where both heirs inherit one after the other
unless the testator has otherwise provided. (774)
Example of a fideicommissary substitution:
The substitute inherits from testator, not from the person The testator has 2 heirs A and B. A first succeeds to the
substituted property, first acquired or enjoyed the property. But the enjoyment
Under Article 859, if the original heir dies ahead of the testator or of A is subject to the condition that he should preserve the property
renounces the inheritance or becomes incapacitated then the and later on, upon conditions given by the testator, either upon
substitution shall be effective even if the disposition is silent as to death or repudiation or upon certain period, A will now transmit the
the cause of the substitution. property to B, the second heir. Both A and B enjoy the property.
Unless the testator has otherwise provide : thus, the testator Although A here merely enjoy uses of the property, he is like a
here is not precluded from providing other causes other than usufructuary because he cannot own the property because of his
predecease, incapacity and renunciation obligation to transmit the property to B. Aside from enjoying the
But if the disposition is silent, then it is presumed that the 3 property, B also owns the property with all the rights pertaining to
causes mentioned under Article 859 are the ones being referred to an owner. Because of the obligation of A to preserve and transmit,
by the testator A:
Substitution must be EXPRESSLY provided by the testator. No 1. cannot absolutely alienate the property inter vivos or
presumption that there is substitution. mortis causa
2. cannot make a will providing that the properties is given to
Article 860. Two or more persons may be substituted for one, and another person
one person for two or more heirs.
Requisites of fideicommissary substitution:
1. The fideicommissary substitution must be
Article 860 talks about Brief or Compendious Substitution
expressly made
BRIEF SUBSTITUTION is when 2 or more persons may be
How?
substituted for one heir (plurality of substitutes)
a. By providing the name of the fideicommissary
COMPENDIOUS SUBSTITUTION is when 2 or more heirs are
substitute or that this is a fideicommissary
instituted and one is appointed as substitute for all heirs originally
substitution
instituted. (plurality of persons substituted)
b. By providing the obligation to preserve and
But in compendious substitution, the substitute is for ALL the
obligation to transmit
heirs. The substitute inherits if all the heirs die ahead of the
2. There must be a first heir (fiduciary, fiduciaro,
testator, renounces the inheritance or becomes incapacitated.
heredero or trustee)
If only one dies, renounces or is incapacitated, the concept of
The first heir must have the capacity
accretion is applied unless there are representatives
to inherit and has the obligation to preserve and transmit
the estate in whole or in part
ARTICLE 861. If heirs instituted in unequal shares should be
reciprocally substituted, the substitute shall acquire the share of the TRUSTEE (TRUST) FIDUCIARY (FIRST HEIR)
heir who dies, renounces, or is incapacitated, unless it clearly appears
A trustee or a trust has no right A fiduciary, although he has the
that the intention of the testator was otherwise. If there are more than
to enjoy the property obligation pertaining to a trustee
one substitute, they shall have the same share in the substitution as in
in a trust, he can enjoy the
the institution. (779a)
property
Article 861 refers to Reciprocal Substitution where all the heirs USUFRUCTUARY FIDUCIARY
are constituted as the substitutes of one another.
Required to furnish a bond The fiduciary is not required to
Example 1: If the share of A is P 30,000 and the share of B is P
furnish a bond or security.
10,000, if A dies ahead of the testator, B will get As share even if
Not entitled to refund. Entitled to refund for expenses
As share is greater than B, unless the testator EXPRESSLY
and for the increase in the
provides that the substitution of B to the share of A is only to the
value of the property by reason
extent of the inheritance by B.
of its improvements
Example 2: If there are more than 2 persons instituted where the
estate is P 300,000 and the heirs are A, B and C. As share is P
3. There must be a second heir (fideicommissary
100,000, Bs share is P 50,000 and Cs share is P 150,000. If A
or fideicomisario or beneficiary or cestui que trust)
dies ahead of the testator, B and C shall have the same share in
The second heir receives the property from the first heir
substitution as in the institution.
but the 2nd heir actually inherits from the testator, not
Institution Substitution Total
from the first heir
A (100T)
The 2nd heir must be capacitated to inherit from the
B P 50T 50/200 * 100T = P 25T P 75T
testator. He must not die ahead of the testator, must not
C P150T 150/200 * 100T = P 75T P 225T
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be unworthy, and must not repudiate the inheritance from the death of the testator. But the buyer is also subject to the
the testator. right of the first heir to enjoy the property.
4. The second heir must not be beyond one degree from the ARTICLE 867. The following shall not take effect:
first heir or the heir originally instituted (1) Fideicommissary substitutions which are not made in an
express manner, either by giving them this name, or imposing upon
the fiduciary the absolute obligation to deliver the property to a
second heir;
2 views as to what one degree means: (2) Provisions which contain a perpetual prohibition to alienate, and
a. Some authorities before interpreted one even a temporary one, beyond the limit fixed in Article 863;
degree as one transfer. (3) Those which impose upon the heir the charge of paying to
b. Later on, it was clarified that degree means various persons successively, beyond the limit prescribed in Article
generation. One degree means one generation apart. The 863, a certain income or pension;
1st heir and the 2nd heir must not be beyond one degree or (4) Those which leave to a person the whole or part of the
one generation apart. You count one generation from the hereditary property in order that he may apply or invest the same
first heir not from the testator. The 2 nd heir must either be according to secret instructions communicated to him by the
child or a parent of the first heir. testator. (785a)
There is only fideicommissary substitution in natural (1) Fideicommissary substitutions which are not made in an
persons express manner, either by giving them this name, or imposing
There can be no fideicommissary substitution in juridical upon the fiduciary the absolute obligation to deliver the
persons because there is no generation to speak of when it property to a second heir
comes to juridical persons The fideicommissary substitution must be an obligation. If
it is just a suggestion or an advice, then that is not
5. Both of the 1st heir and the 2nd heir must be living at the fideicommissary substitution. When we say obligation, the
time of the death of the testator or at least conceived. heir has no choice but to comply.
ARTICLE 41 NEW CIVIL CODE. For civil purposes, the (2) Provisions which contain a perpetual prohibition to alienate,
foetus is considered born if it is alive at the time it is and even a temporary one, beyond the limit fixed in article 863
completely delivered from the mother's womb. However, Any perpetual prohibition on the fiduciary to alienate the
if the foetus had an intra-uterine life of less than seven property is just okay because in the first place he is
months, it is not deemed born if it dies within twenty-four prohibited from alienating the property
hours after its complete delivery from the maternal womb. If only for a period example 10 years, he is prohibited
(30a) from disposing the property for 10 years but after 10 years
he can alienate BUT ONLY to the 2ND HEIR
ARTICLE 864. A fideicommissary substitution can never burden If the testator says in his will that he is prohibiting his
the legitime. (782a) heirs from alienating the property forever, it is void insofar
as it exceeds the 20th year. If it is up to 100 years, it is
Legitime is imposed by law so the testator cannot deprive his heirs valid only up to 20 years.
of their legitime and he cannot circumvent the law on legitime by Prohibition to alienate is only up to the first degree
imposing conditions, charges, burdens and substitutions upon the
legitime (3) Those which impose upon the heir the charge of paying to
The rights of the compulsory heirs to their legitime are absolute various persons successively, beyond the limit prescribed in
except when there is a cause for disinheritance Article 863, a certain income or pension
The fideicommissary substitution is only limited to the free portion The successive payments shall only be limited to those
heirs one degree from the first heir
This paragraph applies if the obligation to pay is
ARTICLE 865. Every fideicommissary substitution must be
successive, not simultaneous
expressly made in order that it may be valid.
The fiduciary shall be obliged to deliver the inheritance to the
(4) Those which leave to a person the whole or part of the
second heir, without other deductions than those which arise from
hereditary property in order that he may apply or invest the
legitimate expenses, credits and improvements, save in the case where
same according to secret instructions communicated to him by
the testator has provided otherwise. (783)
the testator
This is not allowed because we do not know what were
Obligations of the fiduciary:
the instructions made by the testator to such person
1. to preserve the property
2. to deliver the property to the 2nd heir
ARTICLE 868. The nullity of the fideicommissary substitution
If the institution is SILENT as to the date when the delivery
does not prejudice the validity of the institution of the heirs first
should be made, it should be MADE AT THE TIME OF DEATH
designated; the fideicommissary clause shall simply be considered as
OF THE FIDUCIARY or 1ST HEIR. If there is a period stated by
not written. (786)
the testator, then, that period should be followed.
3. to make an inventory of the property
If the fideicommissary substitution is not valid because the
Deductions the fiduciary can make out of the property: obligation to preserve and transmit were not expressly made or
1. legitimate expenses because the second heir dies ahead of the testator, there is no
2. credits more fideicommissary substitution. The first heir will still get the
3. improvements property. It becomes a simple substitution.
ARTICLE 866. The second heir shall acquire a right to the ARTICLE 869. A provision whereby the testator leaves to a
succession from the time of the testator's death, even though he person the whole or part of the inheritance, and to another the
should die before the fiduciary. The right of the second heir shall pass usufruct, shall be valid. If he gives the usufruct to various persons,
to his heirs. (784) not simultaneously, but successively, the provisions of article 863
shall apply. (787a)
As long as the first heir and the second heir did not predecease
the testator, then, their rights become vested upon the death of If the testator gives the usufruct to A and the naked ownership
the testator to B, this is valid
Whether the 2nd heir dies ahead or after the 1 st heir, this would If the testator gives the naked ownership to A and to B and C
not defeat the right of the 2nd heir to inherit. the usufruct, remember in Property that the usufruct in favor of
If the 2nd heir dies ahead of the 1 st heir, his rights shall pass to his as many persons who will claim successively is not allowed
own heirs If the testator gives to A the naked ownership and the usufruct
The second heir can sell the property even if he still cannot enjoy to B and when B dies, C will succeed B to the usufruct and if C
the property because the usufruct still belongs to the 1st heir. This dies, D will succeed to the usufruct, then, the transfer from B to
is because the second heir acquired his title as naked owner upon C is valid. But C to D is no longer valid because it is beyond the
17
limit under Article 863. If B, C and D are just friends, from B to C
and C to D, all are not valid because are not one degree. ARTICLE 872. The testator cannot impose any charge,
If he gives the usufruct to various persons successively, then, it condition, or substitution whatsoever upon the legitimes prescribed
will partake the nature of a fideicommissary substitution. The in this Code. Should he do so, the same shall be considered as not
heirs will be bound by the provisions of Article 863 insofar as the imposed. (813a)
degree is concerned.
The first person who enjoys the usufruct and the second person The legitime should not be impaired
enjoying the usufruct should not be beyond one degree, if we are There is only one prohibition which can be imposed upon the
talking of successive enjoyment of property. legitime and that is, the testator can validly provide that the
If it is simultaneous, we do not have to observe the rules on legitime should not be partitioned/divided for a period not
fideicommissary substitution exceeding 20 years. Although it is not really considered an
impairment because the properties are still properties of the
ARTICLE 870. The dispositions of the testator declaring all or part compulsory heirs although they shall not divide the properties
of the estate inalienable for more than twenty years are void. (n) for more than 20 years.
Article 870 provides the period within which the ARTICLE 873. Impossible conditions and those contrary to law
testator may limit the disposition of his property which is only up or good customs shall be considered as not imposed and shall in no
to 20 years only. manner prejudice the heir, even if the testator should otherwise
If 20 years valid. provide. (792a)
If MORE than 20 years, what is void is merely the excess.
If the prohibition is silent, it is considered as 20 years. The Article 873 talks of impossible conditions imposed in the
same is true if the prohibition is forever. institution of heirs
In succession, when there is an impossible or illegal condition
SECTION 4 then, the institution is still valid. Just disregard the impossible
Conditional Testamentary Dispositions and Testamentary or illegal condition. This is because in succession, the
Dispositions With a Term underlying reason for the institution is the liberality of the
testator and not really the illegal or impossible condition.
ARTICLE 871. The institution of an heir may be made The legality or illegality of the condition is to be determined at
conditionally, or for a certain purpose or cause. (790a) the time when the condition is to be performed
There is no need of institution in the case of legitime because ARTICLE 874. An absolute condition not to contract a first or
regardless of the intention of the testator, the compulsory heirs subsequent marriage shall be considered as not written unless such
are entitled to their legitimes condition has been imposed on the widow or widower by the
Institution refers to the free portion deceased spouse, or by the latter's ascendants or descendants.
Nevertheless, the right of usufruct, or an allowance or some
4 Kinds of Institution: personal prestation may be devised or bequeathed to any person for
1. Simple or Pure Institution It is an institution the time during which he or she should remain unmarried or in
that takes immediately after the death of the testator. It is widowhood. (793a)
absolute and not subject to any condition, charge or burden.
2. Conditional Institution It is an institution which Article 874 refers to the prohibition to marry or remarry
is subject to a condition. There are different kinds of condition, RELATIVE PROHIBITION is allowed. But if this would
e.g. as to cause, as to effect, as to mode. Conditional institution amount to an absolute prohibition like to marry for 60 years
can be found in Articles 871-877 and Articles 883-884 then it is not allowed. An example is prohibition to marry or re-
3. Institution with a Term It is an institution that marry a particular person or prohibited to marry a particular
which is subject to a term which must necessarily come, although time
not known when. An example is when the testator institutes A as ABSOLUTE PROHIBITION is not allowed. An example is
an heir but A will only receive the inheritance 5 years after the prohibition to marry or re-marry anybody or prohibited to marry
death of the testator. It is sure that A will receive the inheritance at all
but only upon the death of the testator. The effect of an absolute prohibition is that it will be considered
4. Modal Institution It is an institution that which as not written and shall be disregarded
for a certain purpose or cause or that which is provided under
Articles 882 and 883. Exceptions to Absolute Prohibition
a. When the condition is imposed upon
CONDITION in Obligations and Contracts is a future or uncertain the spouse by a deceased spouse
event or a past event unknown to the parties b. If imposed by the ascendants or
CONDITION in Succession is a future or uncertain event or a past descendants of a deceased spouse to the spouse of a deceased
event unknown to the parties upon which the acquisition or spouse
extinguishment of a right under a testamentary disposition is
made subject Even if it is the deceased spouse who provides for the
The condition must be express prohibition, that prohibition will not apply to the legitime of the
A TERM is a day or time which necessarily comes although it may spouse. Only that which pertains to her as a voluntary heir
not be known when (free portion) is forfeited
Kinds of Condition: In the 1st paragraph of Article 874, the property is not yet
1. As to Cause enjoyed. In the 2nd paragraph, there is already the right of
a. Potestative Condition - the fulfillment depends exclusively usufruct or allowance or some personal prestation. That is
upon the will of the heir, devisee or legatee. allowed but it is only limited to usufruct, allowance or personal
b. Casual Condition - depends upon chance or the will of a prestation. If it is not among these 3, it is not considered as a
third person valid prohibition.
c. Mixed Condition - depends partly upon the will of the heir
and partly upon chance or the will of a third person.
ARTICLE 875. Any disposition made upon the condition that
2. As to Effect
the heir shall make some provision in his will in favor of the testator
a. Suspensive Condition - the happening of which gives rise
or of any other person shall be void. (794a)
to the inheritance
b. Resolutory Condition - the happening of which
extinguishes the right to the inheritance. Article 875 is what we call DISPOSITION CAPTATORIA
3. As to Mode Disposition Captatoria is when the testator in his will
a. Positive Condition - to do something that would happen. institutes A as his heir provided that A will also give the testator
b. Negative Condition - to do something that will not happen a certain property or give to the son of the testator certain
or that should not be done. property
It is prohibited the controlling motive or the main consideration
4. As to Form in succession is the liberality of the testator. If you make that
a. Express Condition kind of provision, then you are making testamentary privilege
b. Implied Condition
18
as a contractual privilege. You are turning your will into a the property is just suspended. What is suspended is just the
contract. demandability of the inheritance but his right to demand
Both the institution and the condition are VOID becomes vested upon the moment of death.
If it is a Deed of Donation, there is no disposition captatoria since In a suspensive condition, unless the condition is fulfilled,
the law refers to a will the instituted heir acquires no right to the inheritance.
In TERM, the rights will pass
ARTICLE 876. Any purely potestative condition imposed upon an In CONDITION, until after the condition is fulfilled, then the heir
heir must be fulfilled by him as soon as he learns of the testator's instituted has no right to demand.
death. When institution is subject to a condition, the acquisition of
This rule shall not apply when the condition, already complied rights must be determined AT THE TIME OF THE FULFILLMENT
with, cannot be fulfilled again. OF THE CONDITION. So, at the time of the fulfillment of the
condition when the heir is already dead then, there is no right
POTESTATIVE CONDITION is the condition the fulfillment of to speak of.
which depends upon the sole will of the debtor (in obligations and The testator can institute can heir subject to a resolutory term
contracts) or of the heir (succession) because the law does not prohibit it
Potestative Condition in Potestative Condition in

Obligations and Contract Succession
Valid Valid because the heir is ARTICLE 879. If the potestative condition imposed upon the
But when it is suspensive at naturally interested in fulfilling heir is negative, or consists in not doing or not giving something, he
the same time on the part of the the condition. So even if shall comply by giving a security that he will not do or give that
debtor, it is not valid. This potestative and suspensive, the which has been prohibited by the testator, and that in case of
means that the obligation will condition is still valid. contravention he will return whatever he may have received,
arise if subject to a condition together with its fruits and interests. (800a)
which is to be fulfilled by the
debtor. That is what is Article 879 talks of NEGATIVE POTESTATIVE CONDITION,
potestative and suspensive. It is a condition that is purely dependent upon the will of the heir,
not valid because naturally the devisee or legatee which consists of not doing or not giving
debtor would not fulfill the something
condition because if the Under this article, inheritance is immediately demandable from
condition is fulfilled then he is the moment of death of the testator
obliged already because he is But, the heir or devisee must give a caucion muciana
the debtor CAUCION MUCIANA is the security given by an heir who is
subject to a potestative condition which is negative or who is
The potestative condition is to be complied with as soon as the subject to the condition which consist in not doing or not giving
heir learns of the testators death because since the will is something
revocable during the lifetime of the testator, it would be useless If the heir contravenes the condition, the heir will now return
for the heir to comply with the condition knowing that it may be what he or she received by way of inheritance and all the fruits
revoked by the testator anytime and interest
Only substantial compliance is required because it is presumed When monthly allowance, monthly pension, monthly income,
that by imposing a purely potestative condition the testator usufruct or personal prestation are given by way of inheritance
trusted the heirs enough to comply with the condition and the heir is prohibited from doing something, otherwise, he
As a general rule, if already complied with by the heir, it must be shall forfeit the inheritance, there is no requirement of giving a
complied with again unless it is of such a nature that it cannot be security. If the heir contravenes the condition, the heir is not
complied with again obliged to return the fruits and interest because in this example
we apply by analogy Article 874 wherein no security is required
ARTICLE 877. If the condition is casual or mixed, it shall be and the heir is not required to return the fruits and interest.
sufficient if it happen or be fulfilled at any time before or after the
death of the testator, unless he has provided otherwise. ARTICLE 880. If the heir be instituted under a suspensive
Should it have existed or should it have been fulfilled at the time condition or term, the estate shall be placed under administration
the will was executed and the testator was unaware thereof, it shall be until the condition is fulfilled, or until it becomes certain that it
deemed as complied with. cannot be fulfilled, or until the arrival of the term.
If he had knowledge thereof, the condition shall be considered The same shall be done if the heir does not give the security
fulfilled only when it is of such a nature that it can no longer exist or be required in the preceding article. (801a)
complied with again. (796)
Article 880 refers to a situation wherein the institution is subject
Article 877 talks about casual or mixed condition to a suspensive condition or term
CASUAL CONDITION is a condition which depends upon chance When the institution is subject to a suspensive term or a
and/or upon the will of a third person suspensive condition, the heir instituted will NOT get the
MIXED CONDITION is a condition which depends upon inheritance right away. The heir instituted still will have to wait
1. the will of the heir AND upon for the arrival of the term or for the happening of the condition.
chance; or Pending the arrival of the term or the happening of the
2. the will of the heir AND upon condition, the property but shall be placed under
the will of a 3rd person administration.
Example of a mixed and casual condition: I hereby give to A my As to who will be selected as the administrator, the provisions
jewelry provided that A will bear a child of the Rules of Court in Special Proceedings must be complied
There must be actual or strict compliance because by with. Those who are preferred in the appointment as
subordinating the condition upon chance, the testator presumably administrators are also the legal heirs.
did not trust the heir enough The property is also placed under administration if is bond is
not furnished
ARTICLE 878. A disposition with a suspensive term does not
prevent the instituted heir from acquiring his rights and transmitting ARTICLE 881. The appointment of the administrator of the
them to his heirs even before the arrival of the term. (799a) estate mentioned in the preceding article, as well as the manner of
the administration and the rights and obligations of the administrator
Article 878 talks about suspensive term shall be governed by the Rules of Court. (804a)
A term is a day certain which must necessarily come although it
may not be known when This article speaks for the appointment of administrator, which
When the disposition is subject to a suspensive term, it means are discussed in Special Proceedings
that the heir is sure to inherit but the demandability of the Administrator is a person appointed by the court to take care
inheritance is just suspended. The heir is not prevented from of the properties of the testator who died without a will
acquiring his right when the institution is subject to a suspensive Executor is the person provided by the testator in his will who
term. The right of the instituted heir becomes vested from the will take care of his properties pending settlement of his estate
moment of the death of the testator, although the enjoyment of
19
ARTICLE 882. The statement of the object of the institution, or

the application of the property left by the testator, or the charge ARTICLE 884. Conditions imposed by the testator upon the
imposed by him, shall not be considered as a condition unless it heirs shall be governed by the rules established for conditional
appears that such was his intention. obligations in all matters not provided for by this Section. (791a)
That which has been left in this manner may be claimed at once
provided that the instituted heir or his heirs give security for An example of the same rule on conditions applied both to
compliance with the wishes of the testator and for the return of succession and obligations and contracts is an institution
anything he or they may receive, together with its fruits and interests, subject to a resolutory condition. Just like in obligations and
if he or they should disregard this obligation. (797a) contracts, the heir immediately enjoys the property. But upon
the fulfillment of the resolutory condition the heir ceases to
Article 882 refers to MODAL INSTITUTION (2001 Bar enjoy the property. The happening of the condition gives rise to
Question) the extinguishment of the right to the inheritance
MODAL INSTITUTION is the institution wherein the statement If there are specific provisions in succession referring to
of the object of the institution, or the application of the property conditions and these conditions are not the same as in
left by the testator, or the charge imposed by him, shall not be obligations and contracts, the provisions in succession shall
considered as a condition unless it appears that such was his prevail
intention. In succession, an impossible condition shall be considered as
If the heir does not comply with the object or the attestation and not written and so, the institution shall still be given effect.
the purpose of the institution, the heir forfeits the inheritance In obligations and contracts, if the obligation is subject to an
If the institution is subject to a mode, the heir immediately enjoys impossible condition both the condition and the obligation are
the property annulled
The heir is required to furnish a security so that he will do what
has been imposed by the testator ARTICLE 885. The designation of the day or time when the
If there is doubt as to whether the institution is a mode or effects of the institution of an heir shall commence or cease shall be
condition, it is resolved in favor of a mode because we have to valid.
consider that the real reason in the institution is the liberality of In both cases, the legal heir shall be considered as called to the
the testator succession until the arrival of the period or its expiration. But in the
According to Paras, if there is a doubt as to whether it is a mode first case he shall not enter into possession of the property until after
or a suggestion, it is considered as a suggestion because it is less having given sufficient security, with the intervention of the
burdensome instituted heir. (805)
MODE CONDITION This article talks about an institution subject to either a

This refers to: If it refers to other things, you suspensive term or resolutory term
a. t can say that they are If it is subject to a suspensive term, the demandability of the
he object of the conditions. property inherited shall be suspended until after the arrival of
institution; the term. If in the meantime the instituted heir dies before the
b. t arrival of the term, his rights shall pass on to his own heirs
he application of the because the heir already acquired rights to the property from
property; and the moment of death although the demandability is just
c. c postponed.
harge If the institution is subject to a resolutory term, immediately
Heir immediately enjoys the Heirs do not enjoy the property after the death of the testator, the heir enjoys the property and
property upon the death of the after the death of the testator upon arrival of the term the heir shall return the property.
testator, provided he has but only upon the fulfillment of
furnished security the condition Instances wherein the legal heirs or the instituted heirs are
It is obligatory upon the It is not obligatory upon the to give a security:
instituted heir and so, he has to part of the heir because the 1. When the institution is subject to a suspensive term, the
comply with the object of the condition may or may not legal heirs can enjoy the property pending the arrival of
institution or the burden imposed happen the term provided that the legal heirs shall give security
by the testator. The failure to do (Article 885);
so would result in the forfeiture 2. In modal institution, the heir instituted subject to a mode
of the inheritance shall give security before the heir can enjoy the property
When you are in doubt, treat the But if the condition happens, (Article 882); and
same as a mode because when the burden is heavier because a 3. When the institution is subject to a negative potestative
there is a condition, the burden is condition obligates AND condition or consists in not doing or not giving then the
heavier. A mode merely obligates suspends. heir instituted must also give a security which is called
but does not suspend. caucion muciana (Article 879).
ARTICLE 883. When without the fault of the heir, an institution SECTION 5
referred to in the preceding article cannot take effect in the exact Legitime
manner stated by the testator, it shall be complied with in a manner
most analogous to and in conformity with his wishes. Simpler Table of Legitime (from the book of Paras)
If the person interested in the condition should prevent its
fulfillment, without the fault of the heir, the condition shall be deemed Illegitimate Children 1/3 Illegitimate Parents
to have been complied with. (798a) Surviving Spouses 1/3
Illegitimate children Surviving Spouse , 1/3,
Article 883 talks about substantial compliance or constructive Surviving Spouse 1/8
fulfillment Legitimate Parents
Without the fault of the heir instituted, the obligation cannot be Illegitimate Children Legitimate Child alone
fulfilled by the heir exactly in the manner stated by the testator. Legitimate Parents
But as long as it is substantially in accordance with the obligation Legitimate Parents 1 Legitimate Child
imposed then the institution will take effect. Surviving Spouse Surviving spouse
Example of substantial compliance is when the heir is obligated to Illegitimate Parents 2 or more legitimate children
paint a portrait of the testator but the portrait is not an exact Surviving Spouse
resemblance of the testator. Nevertheless, there is substantial Surviving spouse - same as 1
compliance. legitimate child
Even if the obligation cannot be fulfilled with, still, it is as if it is Illegitimate Child alone Legitimate Child
fulfilled by constructive fulfillment. The instituted heir should not Legitimate Parents alone Illegitimate child of each
be prejudiced by the fact that other persons prevented him from legitimate child
fulfilling his obligation.
Example of constructive fulfillment is when a third person cuts the
hand of the heir so that such heir cannot paint a portrait of the
testator anymore.
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ARTICLE 886. Legitime is that part of the testator's property ARTICLE 890. The legitime reserved for the legitimate parents
which he cannot dispose of because the law has reserved it for certain shall be divided between them equally; if one of the parents should
heirs who are, therefore, called compulsory heirs. (806) have died, the whole shall pass to the survivor.
If the testator leaves neither father nor mother, but is survived
When it comes to foreigners, the intrinsic validity of the will shall by ascendants of equal degree of the paternal and maternal lines,
be governed by the national law of the decedent. So, if in their the legitime shall be divided equally between both lines. If the
country there is no system of legitime, the will is still valid. ascendants should be of different degrees, it shall pertain entirely to
Philippines follows a system of legitime the ones nearest in degree of either line. (810)
The purpose of providing for legitimes is to protect the
compulsory heirs of the testator because the testator by his This is the inheritance of the parents or ascendants
passion, prejudice might just omit his compulsory heirs. Observe the rule on proximity the nearer relatives exclude
those who are farther
ARTICLE 887. The following are compulsory heirs: In the ascending line, there is no right of representation
(1) Legitimate children and descendants, with respect to their Always remember to divide equally between the maternal side
legitimate parents and ascendants; and the paternal side
(2) In default of the foregoing, legitimate parents and ascendants,
with respect to their legitimate children and descendants;
(3) The widow or widower; ARTICLE 891. The ascendant who inherits from his descendant
(4) Acknowledged natural children, and natural children by legal any property which the latter may have acquired by gratuitous title
fiction; from another ascendant, or a brother or sister, is obliged to reserve
(5) Other illegitimate children referred to in article 287. such property as he may have acquired by operation of law for the
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not excluded benefit of relatives who are within the third degree and who belong
by those in Nos. 1 and 2; neither do they exclude one another. to the line from which said property came. (871)
In all cases of illegitimate children, their filiation must be duly
proved. Article 891 talks about RESERVA TRONCAL
The father or mother of illegitimate children of the three classes The purpose of reserve troncal is to prevent the property of one
mentioned, shall inherit from them in the manner and to the extent family from falling into the hands of another family
established by this Code. (807a) The concepts of reserve troncal is to return the property from
where it originally came from
This has been already qualified by the Family Code because the The concept of reserva troncal is actually a burden or restriction
Family code does not mention acknowledged natural children or or a charge on the legitime of the ascendant.
natural children by legal fiction. We only have legitimate children
and illegitimate children. Parties involved in Reserva Troncal:
Article 887 enumerate who are the compulsory heirs 1. Origin of the property
The word compulsory means that the testator cannot deprive 2. Propositus
the heir of their share but the heir has the liberty whether or not 3 Reservor or reservista
to accept the inheritance. It is not compulsory upon the heirs to 4. Reservees or reservatorios
accept but is compulsory upon the testator to provide something
for his heirs. Origin Reservor Reservees
The primary compulsory heirs the legitimate children, widow
or widower, and illegitimate children. They inherit all at the same
time. They concur with each other.
The legitimate parents are secondary compulsory heirs. In the Propositus
absence of legitimate children, it is when the ascendants or
parents inherit. It is either the legitimate children or descendants, ORIGIN
parents or ascendants. They will not concur. The origin must be a legitimate relative, either the legitimate
Illegitimate children concur with legitimate children. They concur mother or father or ascendant or legitimate half-brother or half-
with the parents or ascendants. They concur with the surviving sister
spouse. Illegitimate children are concurring compulsory heirs It cannot be full blood brothers and sisters because there would
Brothers and sisters are not compulsory heirs be no distinction as to the line.
The property transferred from the origin to the propositus must
ARTICLE 888. The legitime of legitimate children and be OWNED by the origin
descendants consists of one-half of the hereditary estate of the father
and of the mother. PROPOSITUS
The latter may freely dispose of the remaining half, subject to the The propositus must be a descendant of the origin or of the
rights of illegitimate children and of the surviving spouse as hereinafter half brother or half sister. It must be a legitimate relationship.
provided. (808a) The transfer from the origin to the propositus should be by
gratuitous title, which is either the origin donated the property
The legitime of legitimate children is of the net hereditary to the propositus or the propositus inherited the property from
estate the origin.
The legitime of the surviving spouse and illegitimate children shall The propositus, there being no obligation to reserve yet on his
be taken from the free portion. What remains is the free disposal part, can just dispose the property to anybody. He can use the
Tip: Compute first the legitime of the children before the spouse property or he can destroy the property. That is why the
provided there are 2 or more legitimate children propositus is called the ARBITER of the reserve because it is
within the hands of the propositus whether or not the reserve
will arise. If the propositus will destroy the property, then
ARTICLE 889. The legitime of legitimate parents or ascendants
reserva troncal cannot arise. If the propositus reserves the
consists of one-half of the hereditary estates of their children and
property until his death, then reserve troncal may arise. If the
descendants.
propositus has children of his own, then reserve troncal cannot
The children or descendants may freely dispose of the other half,
arise.
subject to the rights of illegitimate children and of the surviving spouse
Upon the death of the propositus, the obligation to reserve will
as hereinafter provided. (809a)
now arise. The propositus died with no issues and no children,
then, the same property received from the origin is transferred
The legitime of legitimate parents is of the net hereditary to the reservor (ascendant) by OPERATION OF LAW.
estate. It is the same because legitimate parents inherit in the When the propositus died with a will, what is transferred by
absence of legitimate children. operation of law is the portion corresponding to the legitime of
If the parents are legitimate, they are excluded only by the the reservor. If there is NO will, the entire property is
presence of legitimate children. They concur with illegitimate transmitted to the reservor by operation of law.
children. The very same property received by the propositus from the
But if the parents or ascendants are illegitimate, they are excluded origin must be the same property transferred to the reservor
even by the presence of illegitimate children or descendants. If the origin (ascendant) left an insurance policy where the
propositus was the beneficiary, there is no reserve if the cash
received by the propositus was inherited by his mother because
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the proceeds from the insurance policy were not received by the During the lifetime of the reservor the reservees can compel the
propositus from the origin but from the insurance company. reservor to furnish bond, security, mortgage or to annotate the
reserva because they already inherit such property although
RESERVOR conditional. But the right of action of the reservees commences
The reservor is not merely a usufructuary. He is the full owner only from the death of the reservor. As long as the reservor is
of the property. He can alienate, donate or pledge the property. alive, if the reservor sells the property to the 3rd person, the
He owns the property but his ownership is subject to a reservees cannot impugn the sale made by the reservor. They
RESOLUTORY CONDITION. Upon the happening of the resolutory only have the right to demand that the reservor annotate the
condition, the ownership of the reservor will be extinguished. reserva or that the reservor give security, bond or mortgage.
The resolutory condition is that upon the death of the reservor, Reservees can sell the property themselves even if the reservor
there must be reservees or relatives of the descendant propositus is still alive.
who are LIVING AND WITHIN THE 3 RD DEGREE OF This is not a case of future inheritance because the reservees
CONSANGUINITY from the descendant propositus. Upon the inherit not from the reservor but from the propositus. This is a
happening of this resolutory condition, the ownership of the case of sale of future property or emptio rei speratae. The sale
reservor is extinguished. of future property is valid subject to the condition that it should
But the disposition again is also subject to the resolutory condition exist.
that upon the death of the reservor (ascendant), if there are living
reservees, then the effect of the alienation becomes ineffective. ARTICLE 1461 NEW CIVIL CODE. Things having a
If the reservor sold the property to a third person, the obligation potential existence may be the object of the contract of
of the reservor, if it is a personal property, is not to return but the sale.
estate of the reservor must pay the value to the reservees. The efficacy of the sale of a mere hope or
If what was sold was a real property, if the 3 rd party is NOT expectancy is deemed subject to the condition that the
innocent, as such that he knows that the property is subject to the thing will come into existence.
reserve troncal, then that 3rd party is obliged to return the The sale of a vain hope or expectancy is void. (n)
properties to the reservees.
But if the 3rd party is an innocent purchaser or innocent How to know that a relative is within 1st, 2nd or 3rd degree?
mortgagor, then the right of the reservees consists of demanding 1st degree: parents,
payment from the estate of the reservor or demanding payment 2nd degree: grandparents, brothers and sisters
from the Assurance Fund under the Land Registration Authority. 3rd degree: great grandparents, uncles and aunts,
nephews and nieces
Obligations of the reservor during the subsistence of the
reserve: Collateral relatives are uncles & aunts, brothers &
1. The reservor must make an inventory of the property sisters, nephews & nieces
received by operation of law from the descendant; Relatives in the direct line are parents, grandparents
2. He must register the inventory with the Registry of Property; and the great grandparents
3. If the property received from the descendant is Real
property, then the reservor has the obligation to furnish a Reserva troncal determines only a class of relatives who
bond, mortgage or security to insure the safe delivery of the would be entitled to the property after the death of the
property to the reservees who might be living at the time of testator. But as to who will specifically be entitled to the
the death of the reservor; property, follow the rule on legal or intestate succession
4. If the real property is already registered, then the reservor is In legal or intestate succession, the nearer relatives
obliged to annotate the reserve. He must do this within 90 exclude the farther. Those who are in the descending line are
days from the time he received the property from the favored than those who are in the ascending line. And those
descendant or from the time the court makes a decision that who are in the direct line are favored other than those who are
the reservor is entitled to receive the property. If the in the collateral line.
reservor does not make the annotation, then the reservees
have the right to file an action to compel the reservor to The obligation of the reservors estate upon his death if the
make the annotation but they must wait after the lapse of 90 property deteriorates includes:
days. The annotation itself is sufficient protection or if there 1. reimburse the reservees for the value of the deterioration
is no annotation, bond, security, or mortgage must be from the security furnished by the reservor; or
furnished. 2. claim reimbursement from the estate of the reservor.
5. The reservor also must not substitute the property with
another. The same property received from the origin and 2 theories on the value of the reserva:
from the descendant must be same properties to be given to 1. Under the theory of RESERVA MAXIMA, all that can be
the reservees embraced or included in the legitime shall be considered as
Exceptions: reservable property.
1. If the property is sold to the innocent purchaser for 2. Under the theory of RESERVA MINIMA, only HALF of
value, in effect the obligation of the reservor is the property received from the origin to the descendant is
substituted with the obligation to pay money to reserve; transferred to the ascendant reservor as legitime.
2. If the property is lost or destroyed without the fault of
the reservor, then the obligation is extinguished. Example: Propositus inherits a land worth P500,000. Upon his
The reservees may intervene in the land registration proceeding death, he also has P 1M worth of properties aside from the P
not for the purpose of opposing the registration but for the 500,000.The descendant propositus has no issues and thus, all his
purpose of having their claim to the reserva being annotated to properties will go to his father (ascendant). The descendant made a
the title will giving all his properties to his father. If the father has no other
If the reservees did not intervene in the said proceedings, within 1 properties, how much should be the value of the properties came
year, they can file for a review of decree of registration so that from the propositus should the reservor (father) reserve in favor of
they can cause the annotation thereof. But they can no longer do the reservees?
so beyond the 1-year period if the purchaser is innocent. If the The legitime of the ascendant is P750,000, which is from P 1.5
purchaser is not innocent, the 1-year period does not apply. The M divided by 2. Under the theory of reserve maxima, the
purchaser may still be obliged to return the property because reservable property is that which can be embraced in the
knowledge is equivalent to registration. legitime. As such, the entire P 500,000 is reservable because it
can be embraced in the whole legitime worth P 750,000. Out
RESERVEES of the legitime, P 500,000 is reservable and P 250,000
Reservees are 3rd degree relatives of the propositus. is property owned by the descendant.
Upon the death of the reservor, if there are still relatives within Under the theory of reserva minima, only half of the property
the 3rd degree of the propositus who are still living, then the received from the origin to the descendant is reservable. So,
ownership of the reservor is extinguished and the property will half of P 500,000 and half of P 1M will be part of the legitime,
now go to the reservees. which is equal to P 750,000. Thus, the reservable property is
The reservees inherit from the propositus, not from the reservor. only P 250,000, which is half of the property received from the
The reservor is actually a conditional heir of the propositus. origin to the descendant.
The reservees already have rights to the property but their
inheritance is subject to the condition that they must be living at Example: Propositus inherits a land worth P 1M. Upon his death, he
the time of the death of the reservor. also has P 500,00 worth of properties aside from the P 1M.The
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descendant propositus has no issues and thus, all his properties will go If there are two or more legitimate children or descendants, the
to his father (ascendant). The descendant made a will giving all his surviving spouse shall be entitled to a portion equal to the legitime
properties to his father. If the father has no other properties, how of each of the legitimate children or descendants.
much should be the value of the properties came from the propositus In both cases, the legitime of the surviving spouse shall be
should the reservor (father) reserve in favor of the reservees? taken from the portion that can be freely disposed of by the testator.
The legitime of the ascendant is P750,000, which is from P 1.5 M (834a)
divided by 2. Under the theory of reserve maxima, the
reservable property is that which can be embraced in the legitime. If there is only one legitimate child, the legitime of the surviving
As such, only P 750,000 is reservable because it is only up to such spouse would be of the net hereditary estate to be taken
amount that can be embraced in the whole legitime worth P from the free portion
750,000. The guilty spouse shall be disqualified from inheriting from the
Under the theory of reserva minima, only half of the property innocent spouse but the innocent spouse can still inherit from
received from the origin to the descendant is reservable. So, half the guilty spouse.
of P 1M and half of P 500,00 will be part of the legitime, which is If there are 2 or more legitimate children, the surviving spouse
equal to P 750,000. Thus, the reservable property is only P can inherit from the deceased even if there was legal
500,000, which is half of the property received from the origin to separation and the deceased spouse gave cause for the legal
the descendant. separation
The reserva maxima theory is more in keeping with Article 891.
ARTICLE 893. If the testator leaves no legitimate descendants,
Reserva minima is more in keeping with equity and justice. What
but leaves legitimate ascendants, the surviving spouse shall have a
is followed is reserva minima.
right to one-fourth of the hereditary estate.
This fourth shall be taken from the free portion of the estate.
If there is no will:
(836a)
The entire property which came from the other ascendant is
reservable because the entire property was transferred to the
ascendant by operation of law because there is no will. So, the In here, the surviving spouse concurs with the legitimate
entire P 500,000 is reservable from the first example and the ascendants. There are no legitimate children
entire P 1M is reservable from the second example if there was no The share of the legitimate ascendant is one-half. The share of
will. the surviving spouse is to be taken from the free portion
When there is a will, only that part which corresponds to the In order to memorize effectively, you have to memorize first the
legitime is transferred by operation of law. share of the surviving spouse.
But if there is no will then everything is reservable
ARTICLE 894. If the testator leaves illegitimate children, the
How is reserva maxima extinguished? surviving spouse shall be entitled to one-third of the hereditary
1. Upon the death of reservoir estate of the deceased and the illegitimate children to another third.
2. Upon the death of ALL the would-be reservees ahead of the The remaining third shall be at the free disposal of the testator. (n)
reservoir In this scenario, the survivors are the spouse and the
3. Upon the loss of the reservable properties without the fault illegitimate children.
or negligence of the reservoir The share would be 1/3 each. The remaining 1/3 would be the
4. Upon prescription Adverse possession as against reservees free portion.
by the reservoir or a stranger of the reservable property as free The share of the surviving spouse is not taken from the free
from reserva for 30 years if it is a real property and 8 years if it is portion
a personal property. In order for prescription to run, the fact that The legitimes of the legitimate children and the legitimate
the reservor repudiates or hold the property free from the reserva parents would always be
must be communicated to the reservees, the reservees must know The legitimes of the surviving spouse and the illegitimate
that the reservor is holding the property as free from the reserva children may vary.
otherwise there will be no prescription.
5. Upon registration under the Torrens System as free from the ARTICLE 895. The legitime of each of the acknowledged
reservation. natural children and each of the natural children by legal fiction shall
6. Upon renunciation or waiver by ALL reservees AFTER the consist of one-half of the legitime of each of the legitimate children
death of the reservoir or descendants.
The legitime of an illegitimate child who is neither an
Reservable property is not extinguished by the government. It acknowledged natural, nor a natural child by legal fiction, shall be
will just continue on the indemnity or just compensation equal in every case to four-fifths of the legitime of an acknowledged
If the reservable property is insured and then, destroyed, there is natural child.
reserve on the insurance indemnity or proceeds thereof The legitime of the illegitimate children shall be taken from the
portion of the estate at the free disposal of the testator, provided
Bar Question: What do you understand by the DELAYED that in no case shall the total legitime of such illegitimate children
INTESTACY THEORY? exceed that free portion, and that the legitime of the surviving
This is the theory that is applied in RESERVA TRONCAL. spouse must first be fully satisfied. (840a)
Remember, in RESERVA TRONCAL, the reservor inherits from the
propositus. The reservee also inherit from the propositus. Note that under the Family Code, there are no longer
However, the inheritance by the reservee from the propositus is acknowledged natural, natural child by legal fiction. We only
delayed until after the death of the reservor. The inheritance of the have legitimate or illegitimate children.
reservee from the propositus is by virtue of legal or intestate With respect to illegitimate children, they are entitled to one-
succession. Remember, even if the propositus dies testate or with a half of the share of one legitimate child
will, that only refers to the inheritance of the reservor. But, with
In the distribution of legitimes, you first have to satisfy the
respect to the reservee, what governs is the law on legal or intestate
legitime of legitimate children and then, the surviving spouse
succession.
which should be taken from the free portion. And whatever
That is the concept of DELAYED INTESTACY when the
remains, divide it equally among the illegitimate children
resolutory condition of the reservor is fulfilled, the properties are
distributed to the reservees as if they are inheriting from the propositus
ARTICLE 896. Illegitimate children who may survive with
at the time of the fulfillment of the condition. Since there is no will,
legitimate parents or ascendants of the deceased shall be entitled to
then, the reservees inherit by virtue of intestate succession, the
one-fourth of the hereditary estate to be taken from the portion at
decedent being the propositus. The inheritance of the reservees are
the free disposal of the testator. (841a)
delayed.
In this scenario, the illegitimate children survive with the

ARTICLE 892. If only one legitimate child or descendant of the
deceased survives, the widow or widower shall be entitled to one- legitimate parents of the testator
fourth of the hereditary estate. In case of a legal separation, the to the parents and to the illegitimate children
surviving spouse may inherit if it was the deceased who had given Illegitimate children DO NOT exclude the legitimate parents or
cause for the same. ascendants whereas legitimate children excludes legitimate
parents or ascendants
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ARTICLE 897. When the widow or widower survives with If the illegitimate child died ahead of his parents and he
legitimate children or descendants, and acknowledged natural children, also has his own children legitimate or illegitimate, all of these
or natural children by legal fiction, such surviving spouse shall be children will inherit by Right of Representation. They will get
entitled to a portion equal to the legitime of each of the legitimate whatever rights their parents have.
children which must be taken from that part of the estate which the The right of an illegitimate child passes to his children
testator can freely dispose of. (n) whether legitimate or illegitimate.
In the case of a legitimate child, his own illegitimate child
The widow or the surviving spouse concur with legitimate children cannot represent.
and illegitimate children
If there is only 1 legitimate children, the surviving spouse gets ARTICLE 903. The legitime of the parents who have an
If there are 2 or more legitimate children, the spouse shall be illegitimate child, when such child leaves neither legitimate
entitled to a share which is equivalent to a share of one of the descendants, nor a surviving spouse, nor illegitimate children, is one-
legitimate child half of the hereditary estate of such illegitimate child. If only
For the illegitimate children, the share would be of the share of legitimate or illegitimate children are left, the parents are not entitled
1 legitimate child to any legitime whatsoever. If only the widow or widower survives
with parents of the illegitimate child, the legitime of the parents is
ARTICLE 898. If the widow or widower survives with legitimate one-fourth of the hereditary estate of the child, and that of the
children or descendants, and with illegitimate children other than surviving spouse also one-fourth of the estate. (n)
acknowledged natural, or natural children by legal fiction, the share of
the surviving spouse shall be the same as that provided in the The parents under this article are the illegitimate parents
preceding article. (n) (parents of an illegitimate child)
The presence of legitimate children will exclude the
legitimate parents. But legitimate parents, in the absence of
ARTICLE 899. When the widow or widower survives with
legitimate children, will concur with the illegitimate children.
legitimate parents or ascendants and with illegitimate children, such
With respect to the illegitimate parents of the testator,
surviving spouse shall be entitled to one-eighth of the hereditary estate
they are excluded by the presence of the children of the
of the deceased which must be taken from the free portion, and the
testator whether his children are legitimate or illegitimate.
illegitimate children shall be entitled to one-fourth of the estate which
The illegitimate parents are only secondary compulsory
shall be taken also from the disposable portion. The testator may freely
heirs because they inherit their legitimes only in the absence of
dispose of the remaining one-eighth of the estate. (n)
the legitimate or illegitimate children or descendants of the
decedent
The survivors here are the legitimate parents, illegitimate children
Article 903 refers to only to illegitimate parents and not to
and the spouse.
other ascendants like the parents of the illegitimate parents.
To the legitimate parents , to the illegitimate children to be
Thus, the rule here is different from the case of the
taken from the free portion and to the surviving spouse 1/8 to be
grandparents of a legitimate child, for they may inherit in
taken from the free portion.
default of both legitimate parents
ARTICLE 900. If the only survivor is the widow or widower, she

ARTICLE 904. The testator cannot deprive his compulsory heirs
or he shall be entitled to one-half of the hereditary estate of the
of their legitime, except in cases expressly specified by law.
deceased spouse, and the testator may freely dispose of the other half.
Neither can he impose upon the same any burden,
(837a)
encumbrance, condition, or substitution of any kind whatsoever.
If the marriage between the surviving spouse and the testator
(813a)
was solemnized in articulo mortis, and the testator died within three
months from the time of the marriage, the legitime of the surviving
Even without the will of the testator, the compulsory heirs
spouse as the sole heir shall be one-third of the hereditary estate,
except when they have been living as husband and wife for more than are always entitled to their legitimes
five years. In the latter case, the legitime of the surviving spouse shall The only way to deprive the compulsory heirs of their
be that specified in the preceding paragraph. (n) legitime is by expressly disinheriting them in a will, wherein the
legal cause therefore shall be specified.
Only the Free portion of the estate that the testator can
The only survivor here is the spouse
give away is subject to certain condition, substitution or
burden.
GENERAL RULE: The spouse shall be entitled to of the net
But the law states except in cases expressly specified by
hereditary estate if he/she is the only survivor.
law.
EXCEPTION: The spouse shall be entitled to 1/3 if:
1. The marriage was celebrated in articulo mortis and
Burdens that the testator may impose on the legitime:
2. the other spouse died within 3 months from the celebration of the
In accordance with law:
marriage
1. A prohibition to partition the legitime is valid for a period
The spouse who is at the point of death during the marriage
not exceeding 20 years
must be the one who should die
2. Reserva Troncal is also a burden insofar as the legitime of
The cause of death must be the very same reason why the
the reservor or reservista is concerned.
marriage was in articulo mortis
EXCEPTION TO THE EXCEPTION: Surviving spouse gets 1/2 even if
the testator or the testatrix died within 3 months from time of ARTICLE 905. Every renunciation or compromise as regards a
celebration of marriage wherein the couple had been living previously future legitime between the person owing it and his compulsory
as husband and wife for more than 5 years heirs is void, and the latter may claim the same upon the death of
the former; but they must bring to collation whatever they may have
received by virtue of the renunciation or compromise. (816)
This provision is only true with respect to testate succession.
When it comes to intestate or legal succession, this provision does
not apply. During the lifetime of the testator, the heirs only have
inchoate right over the properties of the testator as well as to
ARTICLE 901. When the testator dies leaving illegitimate children their legitime
and no other compulsory heirs, such illegitimate children shall have a The right to their legitime only becomes vested when the
right to one-half of the hereditary estate of the deceased. testator dies
The other half shall be at the free disposal of the testator. (842a) There can be no renunciation or compromise that can be
made based upon a right that is yet an expectancy or an
inchoate right
The only survivors here are the illegitimate children. They are
Even if the compromise is made among the compulsory
entitled to of the estate. The other half is considered as the
heirs themselves, such compromise would still not be valid.
free portion.
There can be renunciation of or compromise on present
legitime because the subject matter is no longer a future
ARTICLE 902. The rights of illegitimate children set forth in the inheritance
preceding articles are transmitted upon their death to their To reconcile with a waiver of a hereditary right, a waiver
descendants, whether legitimate or illegitimate. (843a) of hereditary right is executed after the death of the testator.
Hereditary right means your right to the inheritance. But in
24
Article 905, we are talking here of future inheritance or future Add:
legitime executed during the lifetime of the testator. Donations (X) 100,000
You can waive your right to the inheritance and that can be Donations (Y) 350,000
executed because from the moment of death of the testator, the ----------------
right of heirs to the estate already becomes vested even if there is NET HEREDITARY ESTATE P 2,550,000
still no distribution. ========
ARTICLE 906. Any compulsory heir to whom the testator has left Remedies provided for by law in assuring that the
by any title less than the legitime belonging to him may demand that compulsory heirs would receive their legitime:
the same be fully satisfied. (815) 1. Preterition where even if the
testator omits the compulsory heirs in his estate, the law
Article 906 talks about completion of legitime assures that the compulsory heirs would still receive their
In this case, a compulsory heir has been given his legitime by inheritance.
means of donation, condonation, remission, devise, legacy as long 2. Collation where even if the testator
as the giving of the title is gratuitous already dispose all his properties during his lifetime, still, the
compulsory heirs are assured of their legitime.
COMPLETION OF LEGITIME PRETERITION
(Article 906) ARTICLE 909. Donations given to children shall be charged to
Part of the estate is given to the There is total omission so their legitime.
compulsory heirs although the nothing is given to the Donations made to strangers shall be charged to that part of
amount is equivalent to the compulsory heir during the the estate of which the testator could have disposed by his last will.
legitime but less than the lifetime or in the will, nothing at Insofar as they may be inofficious or may exceed the
legitime. all in the inheritance. disposable portion, they shall be reduced according to the rules
All you have to do is to give We annul the institution of heirs. established by this Code. (819a)
whatever amount that is lacking.
The will remains The will is invalidated but Remember that in succession, a stranger is one who is
legacies and devises which are not a compulsory heir of the testator
not inofficious shall be respected. Donations made to strangers during the lifetime of the
testator are charged to the free portion.
Donations to strangers should be collated, otherwise, the
ARTICLE 907. Testamentary dispositions that impair or diminish
legitime of the compulsory heirs will be impaired
the legitime of the compulsory heirs shall be reduced on petition of the
same, insofar as they may be inofficious or excessive. (817) If there is no free portion to speak of, the donation
becomes inofficious. As such, there has to be a reduction or a
return of the property donated.
Article 907 talks about testamentary disposition that impair
or diminish the legitime of compulsory heirs
By analogy, this article applies to donation inter vivos.
Donations which impair (donation inter vivos) the legitime shall be Example: Same data as in the previous example in Article 908
reduced on petition of the compulsory heirs. Legitime = P 2,550,000 / 2
When you apply inofficious donation, only the compulsory = P 1,275,000
heirs can assail that the donation shall be reduced because it
impairs their legitime. Donation made to X is considered as an advance. Upon
The creditor cannot petition that donation inter vivos which distribution, he will only receive P 1,175,000.
are inofficious be reduced Donation made to Y shall be charged to the free portion:
P 1,275,000 350,000 = P 925,000
ARTICLE 908. To determine the legitime, the value of the The remaining free portion is P 925,000 because the testator
property left at the death of the testator shall be considered, deducting already disposed P 350,000 in advance. This is not inofficious
all debts and charges, which shall not include those imposed in the will. because it can be accommodated in the free portion.
To the net value of the hereditary estate, shall be added the Assuming that the testator in his will made a legacy to M worth
value of all donations by the testator that are subject to collation, at P 500,000. The testator is survived a by a spouse, a legitimate child
the time he made them. (818a) and an illegitimate child. A donation to Y worth P 350,000 was also
made.
If you do not arrive at the correct net hereditary estate, all Legitimate child P 1,275,000
your computation of the legitimes would be wrong Spouse 637,500 (1,275,000/2)
You add the donations made during the lifetime of the Y 350,000
testator. That is the process of COLLATION. Illegitimate child 637,500
In collation, you do not actually return the property The estate is already consumed with what due to the legitimate
physically but only the value thereof is considered as part of the child, the spouse and the illegitimate child. In this case, there is no
estate more free portion left. Thus, the donation becomes inofficious. In
Donations are collated because it would be easy for the addition, the legacy to M cannot be given effect because there is no
testator to circumvent the law on legitime by donating all his free portion anymore
properties during his lifetime so that nothing would be left for his
compulsory heirs at the time of his death. ARTICLE 910. Donations which an illegitimate child may have
Donations which are inofficious cannot be assailed by received during the lifetime of his father or mother, shall be charged
creditors except when the donation is in fraud of the creditor to his legitime.
The value to be considered is the value of the property Should they exceed the portion that can be freely disposed of,
donated at the time it was donated, not the value upon the death they shall be reduced in the manner prescribed by this Code. (847a)
of the testator
Remember that donations to spouses are void. Since it is
ARTICLE 911. After the legitime has been determined in
void, it is still part of the estate and so, there is nothing to collate
accordance with the three preceding articles, the reduction shall be
because it was not deducted
made as follows:
(1) Donations shall be respected as long as the legitime can be
Example:
covered, reducing or annulling, if necessary, the devises or
Donations
legacies made in the will;
X P 100,000Estate: P2,500,000
(2) The reduction of the devises or legacies shall be pro rata,
Y P 350,000Debts: 250,000
without any distinction whatever.
Taxes: 150,000
If the testator has directed that a certain devise or legacy
be paid in preference to others, it shall not suffer any reduction
Estate: P 2,500,000
until the latter have been applied in full to the payment of the
Less:
legitime.
Debts ( 250,000)
(3) If the devise or legacy consists of a usufruct or life annuity,
Taxes ( 50,000)
whose value may be considered greater than that of the
----------------
disposable portion, the compulsory heirs may choose
P 2,100,000
25
between complying with the testamentary provision and delivering to made that first donation. That is if the donations are made on
the devisee or legatee the part of the inheritance of which the different dates.
testator could freely dispose. (820a)
ARTICLE 912. If the devise subject to reduction should consist
Order of priority: of real property, which cannot be conveniently divided, it shall go to
1. Legitime the devisee if the reduction does not absorb one-half of its value;
2. Donations and in a contrary case, to the compulsory heirs; but the former and
3. Preferred legacy or devise; and the latter shall reimburse each other in cash for what respectively
4. All other pro-rata belongs to them.
The devisee who is entitled to a legitime may retain the entire
Steps to be followed under Article 911: property, provided its value does not exceed that of the disposable
1. Determine the Net Hereditary Estate (NHE); portion and of the share pertaining to him as legitime. (821)
How? Gross Estate
Less: Debts & charges In this case, the devise subject to reduction cannot be
Plus: Donations subject to Collation conveniently divided
2. Determine the legitime of the compulsory heirs based on #1; According to Article 912, if the reduction does not absorb
3. Add total value of all of all the legitimes of all the compulsory of its value, it shall go to the devisee and the devisee will
heirs; just pay the compulsory heirs for such value
4. Deduct the total value of the legitimes in #3 from the Net If the reduction absorbs more than of its value, it shall
Hereditary Estate in #1 to arrive at the free disposal; go to the compulsory heirs and the compulsory heirs will just
5. Charge the donations to compulsory heirs to their legitimes. pay the devisee for such value
In case of excess of donations over the legitime, charge excess to If it is exactly of its value, the real property shall go to
free disposal; the devisee if you apply the article literally, you would be
6. Charge the donations to strangers to the free disposal; defeating the intent of the testator. The devisee will just pay
7. Charge PREFERRED legacies/devises to free disposal; the compulsory heirs for the value
8. Charge all other legacies/devises to free disposal;
9. In case free disposal is insufficient, reduce the legacies, ARTICLE 913. If the heirs or devisees do not choose to avail
donations etc in the order of priority. themselves of the right granted by the preceding article, any heir or
devisee who did not have such right may exercise it; should the
How? latter not make use of it, the property shall be sold at public auction
1. Donation to strangers; at the instance of any one of the interested parties. (822)
2. If there is still an excess, then you charge the legacies &
devises; If the legatee or devisee does not want to exercise the
3. If still insufficient, all others. right under Article 912, the other parties (heir or devisee) may
exercise the right on behalf of the party who does not wish to
Article 911 is when there are compulsory heirs AND/OR there exercise the right
are donations subject to collations If none of the parties have the interest to exercise the
right or reimbursement or retention, the property may just be
sold at a public auction at the instance of any interested party
such as a creditor of the estate
Example:
Net Hereditary Estate P 2,550,000
ARTICLE 914. The testator may devise and bequeath the free
Donations: Legitimate child P 100,000
portion as he may deem fit. (n)
X (friend) 350,000
M (legacy) 500,000
N (devise) 200,000 After all the legitimes of the compulsory heirs have been
Testator is survived by a spouse and a legitimate child. satisfied, including the surviving spouse and the illegitimate
children, the free disposal may be given by the testator to
Legitimate child P 1,275,000 anybody provided that there is no prohibition by law.
Spouse 637,500 If he gives the free disposal to his concubine, that is not
--------------- allowed
Free Portion P 637,500
Review on LEGITIME
The free portion is not sufficient to accommodate the donation,
the legacy, and the devise. MEMORIZE the legitime of the compulsory heirs
Donations are preferred as long as the legitime can be covered, For easy memorization, maybe, you first start with the
reducing or annulling, if necessary, the devises or legacies made in the legitime of the surviving spouse because the legitime of the
will. surviving spouse varies according to the other concurring heirs.
Free Portion P 637,500 1. Surviving spouse with 1 legitimate child =

Donation to X (friend) 350,000 Legitimate child =
------------
Remaining Free Portion P 287,500 2. If there are 2 or more legitimate children, the share of the
surviving spouse changes:
The remaining free portion is to be distributed pro-rata since the Surviving spouse = share of 1 legitimate child
testator did not prefer a certain devise or legacy. Legitimate child = 1/2
Legacy: 5/7 x 287,500 = P 205, 357.14 3. Spouse surviving with the parents of the testator:
Devise: 2/7 x 287,500 = P 82, 142.86 Surviving spouse =
Parents =
If there are preferred legacy or devise, for example, the
testator says that the legacy to M is preferred, therefore, of the If there are illegitimate children:
P287,500 remaining, this will all be given as legacy to M. The Surviving spouse = 1/8
whole P 500,000 cannot be given because the net estate is not
sufficient. But because it is preferred, it shall be given ahead of 4. Spouse survives with illegitimate children only:
the devise. In that case, the devise will not be given anymore. Surviving spouse = 1/3
If there were 2 or more donations, they shall be respected Illegitimate children = 1/3
equally if made at the same time. It shall be apportioned the
same with the legacy and devise, which means pro-rata. 5. If the spouse is the only survivor =
If there were 2 or more donations made on different dates, If marriage celebrated articulo mortis and the other spouse
the earlier one shall be respected. The more recent donations are died within 3 months = 1/3
less preferred than the donations earlier made because there is a If they have been living together for 5 years =
presumption that it was made first. This means that the testator
has more preference or affection for that person to whom he Legitimate children always
26
Legitimate parents always But the devises and legacies and other testamentary
Illegitimate children always of the share of 1 legitimate dispositions shall be valid to such extent as will not impair the
child unless there are many illegitimate children and the estate is legitime
not enough to accommodate their share. In that case, divide the
remainder among the illegitimate children. EXAMPLE # 1:
The testator instituted A and B in his will and disinherited C for
the reason that C is ugly . A, B and C are all his legitimate
SECTION 6 children. His estate is worth P 120,000.
Disinheritance The effect is it shall annul the institution of heirs insofar as only
it may prejudice the legitime of the invalidly disinherited heir.
ARTICLE 915. A compulsory heir may, in consequence of Legitime = P 120,000 / 2
disinheritance, be deprived of his legitime, for causes expressly stated = P 60,000
by law. (848a) Legitime of each child = P 60,000 / 3
= P 20,000
Article 915 talks about the consequence of being disinherited Distribution:
DISINHERITANCE is the process or act, thru a C = P 20,000 (legitime)
testamentary disposition of depriving in a will any compulsory heir A = P 20,000 + 30,000 = P 50,000
of his legitime for true and lawful causes. B = P 20,000 + 30,000 = P 50,000
Disinheritance refers only to a compulsory heir
Disinheritance is made through a testamentary disposition. EXAMPLE # 2:
There must be a will. Same example with additional data that X is given a legacy of P
There is no disinheritance in legal or intestate succession, 30,000 cash.
only in testate succession C = P 20,000
Disinheritance can be made only for causes expressly stated A = P 20,000 + P 15,000
B = P 20,000 + P 15,000
by law
X = P 30,000
Ways of depriving the compulsory heir of his legitime
Remember, in the order of distribution, the devise or
1. Disinheritance (Article 915)
2. Repudiation of the inheritance - the act of the heir himself legacy shall be given ahead of the inheritance.
3. Incapacity by reason of unworthiness
4. Predecease - the actual or presumptive death of the heir PRETERITION VALID DISINHERITANCE
5. Loss of the estate The omission may be either Disinheritance is always
6. When the death or charges are equal to or more than the intentional or unintentional as intentional because it has to be
value of the estate long as the deprivation is total. provided for in the will.
With cause or without cause The cause must be provided for
ARTICLE 916. Disinheritance can be effected only through a will by law. (Articles 920 & 921 NCC)
wherein the legal cause therefor shall be specified. (849) Annuls the institution The disinherited heir inherits
nothing from the legitime & the
free portion.
Requisites for a valid disinheritance:
May exist with or without a There must always be a will
1. The disinheritance must be made in valid will
will.
The disinheritance can also be effected by virtue of a codicil
Q: How does preterition exist
Disinheritance can also be made in a separate will
without a will?
Disinheritance can also be made in Incorporation By
A: During the lifetime of the
Reference
testator, he can make
2. The disinheritance must be made expressly, not impliedly
donations and the donations
3. There must be a legal cause for the disinheritance
will be collated later on. If
4. The disinheritance must be made for a true cause
during his lifetime, he gave all
5. The disinheritance must be for and existing cause
his properties to one of his
A conditional disinheritance is not allowed:
children. So upon his death,
I will disinherit my son if he will kill me in the future
there is nothing left. So upon
But a conditional revocation of disinheritance is allowed:
his death, there is no will but
My son attempted for my life. I will disinherit him.
still there is preterition because
But if he will ask for my forgiveness, I will revoke the
there is omission.
disinheritance
The institution is always void The institution will be followed
6. The disinheritance must be total or complete
unless there is another cause for
7. The cause must be stated in the will itself
not following the institution which
8. The heir disinherited must be clearly identified, so that there will
is not because of the
be no doubt as to who is really being disinherited
disinheritance but for other
9. The will in which the disinheritance is stated must not have been
causes.
revoked, at least in so far as the disinheritance is concerned
PRETERITION IMPERFECT DISINHERITANCE
ARTICLE 917. The burden of proving the truth of the cause for
The institution of heirs is The institution remains valid, but
disinheritance shall rest upon the other heirs of the testator, if the
completely annulled must be reduced insofar as the
disinherited heir should deny it. (850)
legitime has been impaired
If there is a devise or legacy, Devises, legacies or other
ARTICLE 918. Disinheritance without a specification of the cause, he will receive the devise or testamentary dispositions shall be
or for a cause the truth of which, if contradicted, is not proved, or legacy as long as it is not valid. Even if the person is just an
which is not one of those set forth in this Code, shall annul the inofficious instituted heir, he will still receive
institution of heirs insofar as it may prejudice the person disinherited; his share or inheritance.
but the devises and legacies and other testamentary dispositions shall It is important to distinguish Even if the person is just an
be valid to such extent as will not impair the legitime. (851a) whether the person is an instituted heir, as long as the
instituted heir or a devisee or institution does not prejudice the
legatee legitime of the invalidly
Article 918 talks of invalid disinheritance disinherited heir, then, that heir
shall receive the inheritance
Instances wherein there is ineffective disinheritance:
1. Disinheritance without specification of the cause ARTICLE 919. The following shall be sufficient causes for the
2. For a cause which is not a true cause disinheritance of children and descendants, legitimate as well as
3. For a cause not given in law illegitimate:
(1) When a child or descendant has been found guilty of an
Consequence if there is an invalid disinheritance attempt against the life of the testator, his or her spouse,
It shall annul the institution of the heirs but in so far as only descendants, or ascendants;
for the purpose of completing the legitime of the compulsory heir
27
(2) When a child or descendant has accused the testator of a crime Generally, crimes which are punishable by death penalty,
for which the law prescribes imprisonment for six years or reclusion perpertua and reclusion temporal, all of these
more, if the accusation has been found groundless; carry with it the accessory penalty of civil interdiction
(3) When a child or descendant has been convicted of adultery or
concubinage with the spouse of the testator; ARTICLE 920. The following shall be sufficient causes for the
(4) When a child or descendant by fraud, violence, intimidation, or disinheritance of parents or ascendants, whether legitimate or
undue influence causes the testator to make a will or to change illegitimate:
one already made; (1) When the parents have abandoned their children or induced
(5) A refusal without justifiable cause to support the parent or their daughters to live a corrupt or immoral life, or attempted
ascendant who disinherits such child or descendant; against their virtue;
(6) Maltreatment of the testator by word or deed, by the child or (2) When the parent or ascendant has been convicted of an
descendant; attempt against the life of the testator, his or her spouse,
(7) When a child or descendant leads a dishonorable or disgraceful descendants, or ascendants;
life; (3) When the parent or ascendant has accused the testator of a
(8) Conviction of a crime which carries with it the penalty of civil crime for which the law prescribes imprisonment for six years or
interdiction. (756, 853, 674a) more, if the accusation has been found to be false;
(4) When the parent or ascendant has been convicted of adultery
Article 919 talks about the grounds for disinheritance or concubinage with the spouse of the testator;
Under Article 919, the person who is disinherited is a child or (5) When the parent or ascendant by fraud, violence, intimidation,
descendant of the testator, whether that child is legitimate or or undue influence causes the testator to make a will or to change
illegitimate one already made;
(6) The loss of parental authority for causes specified in this Code;
(1) When a child or descendant has been found guilty of an (7) The refusal to support the children or descendants without
attempt against the life of the testator, his or her spouse, justifiable cause;
descendants, or ascendants (8) An attempt by one of the parents against the life of the other,
There is final judgment or conviction already unless there has been a reconciliation between them. (756,
At the time of the execution of the will, it is not necessary 854, 674a)
that the judgment is final
He can be found guilty and the judgment may become final This article deals with the causes disinheriting an
after the death as long as it becomes final. Disinheritance ascendant
can be given effect once the judgment becomes final The disinherited heir may controvert the grounds stated in
already. There must be an intent to kill. the will
Even if the descendant is just an accomplice or accessory,
this paragraph applies (1) When the parents have abandoned their children or induced
Even if the law says attempt, the more reason that frustrated their daughters to live a corrupt or immoral life, or
and consummated stages are to be included attempted against their virtue
Abandonment here does not even have to amount to a
(2) When a child or descendant has accused the testator of crime as long as he has already deprived his child of the
a crime for which the law prescribes imprisonment for six years basic necessity or he has not been seen for a number of
or more, if the accusation has been found groundless years
The accusation be groundless Abandonment refers to either physical, educational or
The crime being referred here is against anybody moral as long as you neglect your child
Accusations referred in this paragraph: This may be applied by analogy to sons
1. It may include the institution of a criminal action
2. You testify in a case against your parents or ascendants (2) When the parent or ascendant has been convicted of an
involving a crime which carries a penalty of 6 years or more attempt against the life of the testator, his or her spouse,
3. Statements wherein you affirm the accusations made against descendants, or ascendants
your parents, ascendants. (3) When the parent or ascendant has accused the testator
of a crime for which the law prescribes imprisonment for
(3) When a child or descendant has been convicted of adultery six years or more, if the accusation has been found to be false
or concubinage with the spouse of the testator (4) When the parent or ascendant has been convicted of
The law here says convicted of adultery or concubinage, adultery or concubinage with the spouse of the testator
unlike the ground in legal separation where preponderance (5) When the parent or ascendant by fraud, violence,
of evidence is sufficient intimidation, or undue influence causes the testator to make a
There has to be conviction will or to change one already made
Numbers 2, 3, 4, and 5 are the same as those in Article
(4) When a child or descendant by fraud, violence, 919
intimidation, or undue influence causes the testator to make a
will or to change one already made (6) The loss of parental authority for causes specified in this
There has to be another will made Code
In this case, this should refer to those causes by which the
(5) A refusal without justifiable cause to support the parent or parent or ascendant is at fault. These causes are provided
ascendant who disinherits such child or descendant for in Article 330 and 332 of the Civil Code.
The determination whether or not the refusal of the child is
without just cause will depend upon the means of the child ARTICLE 330 NEW CIVIL CODE. The father and in a
and the necessity of the ascendant proper case the mother, shall lose authority over their
children:
(6) Maltreatment of the testator by word or deed, by the child (1) When by final judgment in a criminal case the
or descendant penalty of deprivation of said authority is imposed upon
This ground of maltreatment is present only with respect to him or her;
disinheritance of a descendant (2) When by a final judgment in legal separation
proceedings such loss of authority is declared. (169a)
(7) When a child or descendant leads a dishonorable or
disgraceful life ARTICLE 332 NEW CIVIL CODE. The courts may
What is dishonorable or disgraceful life is a question which is deprive the parents of their authority or suspend the
addressed to the judgment of the court but generally, the act exercise of the same if they should treat their children
must not be an isolated or single act with excessive harshness or should give them corrupting
It has to be a way of life orders, counsels, or examples, or should make them beg
The child or descendant may be a male or a female or abandon them. In these cases, the courts may also
deprive the parents, in whole or in part, of the usufruct
(8) Conviction of a crime which carries with it the penalty of over the child's property, or adopt such measures as they
civil interdiction may deem advisable in the interest of the child. (171a)
A child under parental authority cannot execute a will

28
If the parent regains parental authority, there are 2 views: because it is a ground for legal separation. In this ground,
1. The disinheritance will remain notwithstanding that there is no conviction, but mere attempt
the parent has regain his or her parental authority But under Article 921, paragraph 1, take note that what it
because the reason for the disinheritance is not really provides is conviction: When the spouse has been
the loss of parental authority but the cause for the loss convicted of an attempt against the life of the testator, his
of parental authority. or her descendants, or ascendants
2. The disinheritance is already deemed ineffective If one of the spouses attempt against the life of a common
because upon the death of the child there is really no child or descendant, there has to be conviction in order
more loss of parental authority. that it may constitute a ground for disinheritance because
it is not a ground for legal separation
(7) The refusal to support the children or descendants without
justifiable cause If there already has been a decree of legal separation,
The same with Article 919 there is no more need to disinherit the offending spouse
because by operation of law, the inheritance given to the other
(8) An attempt by one of the parents against the life of the spouse is revoked and he or she is also disqualified from
other, unless there has been a reconciliation between them. inheriting from the innocent spouse.
The child, the son, the daughter or the grandchild may
disinherit his parent who has attempted against the life of ARTICLE 922. A subsequent reconciliation between the
the other parent offender and the offended person deprives the latter of the right to
No need for conviction because the law says attempt, so disinherit, and renders ineffectual any disinheritance that may have
mere attempt been made. (856)
But if there is a reconciliation between the parents, then, the
child cannot anymore disinherit because if the offended party Reconciliation is the mutual restoration of feelings to the
has deemed it proper to forgive the other spouse, then, with status quo. It is a bilateral act. The offended party must be
more reason the child because he is not the party directly able to forgive and the offender must be able to accept the
offended forgiveness.
If there is disinheritance and subsequently there is
ARTICLE 921. The following shall be sufficient causes for reconciliation, then the disinheritance becomes ineffectual
disinheriting a spouse: There is no reconciliation if it is merely a general pardon
(1) When the spouse has been convicted of an attempt against the wherein the testator forgives all who have offended him
life of the testator, his or her descendants, or ascendants; because such is a unilateral act of the testator
(2) When the spouse has accused the testator of a crime for which
the law prescribes imprisonment of six years or more, and the How is disinheritance revoked?
accusation has been found to be false; 1. There is subsequent reconciliation (so the
(3) When the spouse by fraud, violence, intimidation, or undue disinheritance shall be ineffective)
influence cause the testator to make a will or to change one 2. By making the disinherited heir an instituted heir
already made; 3. By the revocation of a will containing
(4) When the spouse has given cause for legal separation; disinheritance
(5) When the spouse has given grounds for the loss of parental 4. By the disallowance of a will containing the
authority; disinheritance
(6) Unjustifiable refusal to support the children or the other spouse.
(756, 855, 674a) ARTICLE 923. The children and descendants of the person
disinherited shall take his or her place and shall preserve the rights
of compulsory heirs with respect to the legitime; but the disinherited
parent shall not have the usufruct or administration of the property
which constitutes the legitime. (857)
When the spouse has given cause for legal separation Article 923 talks about the right of representation of
In this case, there is yet no decree of legal separation but the heirs of the disinherited heir
only the occurrence of the cause for legal separation.
You do not have to secure a decree of legal separation first EXAMPLE: Testator has 2 children, A and B. A has 2 children, C and
before you can disinherit your spouse who has given ground D. A is disinherited. Even if A can no longer inherit, C and D will
now represent A but only with respect to the legitime of A. The fault
Grounds for Legal Separation: of A should not be imputed against As heirs.
ARTICLE 55 NEW CIVIL CODE. A petition for legal
separation may be filed on any of the following grounds: An heir who has been disinherited can be represented
(1) Repeated physical violence or grossly abusive conduct PER CAPITA means one inherits in his own right. In the
directed against the petitioner, a common child, or a example, B inherits in his own right.
child of the petitioner; PER STIRPES means one inherits by virtue of
(2) Physical violence or moral pressure to compel the representation. In the example, C and D inherit as
petitioner to change religious or political affiliation; representatives of A
(3) Attempt of respondent to corrupt or induce the
petitioner, a common child, or a child of the petitioner, When there is a will, representation takes place only with
to engage in prostitution, or connivance in such respect to the legitime
corruption or inducement; But if there is no will, representation pertains to the
(4) Final judgment sentencing the respondent to ENTIRE portion
imprisonment of more than six years, even if pardoned;
(5) Drug addiction or habitual alcoholism of the A will containing only a disinheritance is an indirect
respondent; disposition. It is a valid will
(6) Lesbianism or homosexuality of the respondent;
(7) Contracting by the respondent of a subsequent PRINCIPLE: When there is a will, the representation of the
bigamous marriage, whether in the Philippines or heir of the disinherited heir will only be to the EXTENT OF THE
abroad; LEGITIME. But with respect to the free portion, that goes to the
(8) Sexual infidelity or perversion; instituted heir UNLESS the will does not dispose of the entire
(9) Attempt by the respondent against the life of the property and that there is intestacy the own heirs of the
petitioner; or disinherited heir may still part of the free portion
(10) Abandonment of petitioner by respondent without
justifiable cause for more than one year. The disinherited heir who is represented has no usufruct
For purposes of this Article the term "child" shall or administration of the property which constitutes the legitime.
include a child by nature or by adoption. (97a) Even if his own children will get the property which he should
have gotten had he not been disinherited, he cannot use it and
Note that even if there is merely an attempt against the life he cannot administer it
of the other spouse, it can be a ground for disinheritance
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There is no representation with respect to the spouse. right
of representation pertains only to the descending and direct line
There is no right of representation in the ascending line
(END for Succession Review 1 1st Semester)
30
SECTION 7 understood limited to such part or interest, unless the testator
Legacies and Devises expressly declares that he gives the thing in its entirety. (864a)
ARTICLE 924. All things and rights which are within the GENERAL RULE: The legacy or devise shall be valid only to that
commerce of man may be bequeathed or devised. (865a) portion which is owned by the testator
EXCEPTION: If the testator EXPRESSLY declares that he gives the
Everything can be bequeathed or devise as long as within the thing in its entirety
commerce of man
Article 929 presupposes that the testator knows that he is
Things which cannot be bequeathed or devised: not the full owner of the thing but still he has interest or he is a
1. Res Communes part owner
2. Property of Public Dominion The knowledge of the testator can be proved by the will
3. Property of Public Use itself or by evidence aliunde (evidence oustside the will).
4. Res Nullus But if the testator wants to give the property in its
5. Illicit things entirety, he must expressly provide it in the will.
6. Purely Personal or Intransmissible Rights
ARTICLE 930. The legacy or devise of a thing belonging to
ARTICLE 925. A testator may charge with legacies and devises another person is void, if the testator erroneously believed that the
not only his compulsory heirs but also the legatees and devisees. thing pertained to him. But if the thing bequeathed, though not
The latter shall be liable for the charge only to the extent of the value belonging to the testator when he made the will, afterwards
of the legacy or the devise received by them. The compulsory heirs becomes his, by whatever title, the disposition shall take effect.
shall not be liable for the charge beyond the amount of the free portion (862a)
given them. (858a)
ARTICLE 929 ARTICLE 930
The testator is a part-owner or The testator has no interest
GENERAL RULE: When the will is silent, the estate has the duty of has a part interest AND he whatsoever but he erroneously
effecting the legacy or devise knows that he a part interest or believed that he owns the
EXCEPTION: If the testator charges his heirs with the legacy or devise, ownership in the thing property.
then ALL of the heirs, including the legatees or devisees, has the duty bequeathed or devise.
of effecting the legacy or devise. The value of the legacy or devise
given by the heirs shall be proportion to the shares which they
received.
ARTICLE 931. If the testator orders that a thing belonging to
EXCEPTION TO THE EXCEPTION: But is a SPECIFIC HEIR or LEGATEE
another be acquired in order that it be given to a legatee or devisee,
OR DEVISES is charged with the burden of giving this legacy or devise,
the heir upon whom the obligation is imposed or the estate must
then that legatee, devisee, or heir alone shall bear the burden of giving
acquire it and give the same to the legatee or devisee; but if the
out the legacy or devise. Even the compulsory heirs may be charged
owner of the thing refuses to alienate the same, or demands an
with the burden of the legacy or devise but it should not exceed the
excessive price therefor, the heir or the estate shall only be obliged
amount of the free portion given
to give the just value of the thing. (861a)
Kinds of Legacy
1. LEGACY PROPER The estate has the duty to give the Article 930 Article 931
legacy. The testator does not own the The testator knows that the
2. PRE-LEGACY The duty is given to the estate but the gift property but he erroneously property is not his and he
is given to a specific heir or legatee. The legacy is made specific believed that he owns the makes an ORDER that the
or determinate so a car, a house and lot but still the duty to give property property shall be given to the
the legacy or devise is upon the estate. devisee or to the legatee.
3. SUB-LEGACY/SUB-DEVISE this is the one referred to If the owner of the property If theres an order, the estate,
under Article 925, when a legacy is charged to an heir, or a demands an excessive price or or the heir, legatee or devisee
legatee or a devisee. refuses to alienate the property charged MUST ACQUIRE it and
then, that is the time when the give it to the legatee or devisee.
ARTICLE 926. When the testator charges one of the heirs with a estate, or the heir, legatee or
legacy or devise, he alone shall be bound. devisee charged with the duty of
Should he not charge anyone in particular, all shall be liable in the giving shall give a reasonable or
same proportion in which they may inherit. (859) just value of the thing.
If the testator knows that he does not own the property

ARTICLE 927. If two or more heirs take possession of the estate, but gives it to the devisee or legatee and there is no order that
they shall be solidarily liable for the loss or destruction of a thing it shall be acquired by the estate, the devise or legacy is still
devised or bequeathed, even though only one of them should have valid but the estate, or the heir, legatee or devisee charged
been negligent. (n) with the duty of giving the property has a choice. He may have
or acquire the property and give it to the legatee or devisee or
Even if they are solidarily liable, the heir who is not negligent he may just pay the just value.
can demand reimbursement form the one who was negligent
If the thing is lost through a fortuitous event, the heirs do If there is an order, follow the order
not have any obligation to deliver. But if the owner of the property does not want to alienate
If it is intentional, there is no solidary liability. The one who the property, the heir or the estate must pay the just value
is at fault is the only one liable. If there is no order that it shall be acquired by the estate,
the estate has the choice. He may just acquire the property or
ARTICLE 928. The heir who is bound to deliver the legacy or pay the just value thereof.
devise shall be liable in case of eviction, if the thing is indeterminate
and is indicated only by its kind. (860) The order that the thing belonging to another be acquired
NEED NOT BE EXPRESS. It may be implied.
If indeterminate or generic, the heir bound to deliver is liable
for eviction. There is warranty against eviction because being Remember the difference:
indeterminate or being generic, the heir charged should not have Article 929 he owns only a part of the thing
delivered thing which is defective. Article 930 he does not own the thing and he does not know
If specific, the heir is not liable because his duty is merely to that he does not own the thing
deliver what the testator has chosen. It is beyond the power of Article 931 he does not own the thing but at the time of the
the heir, legatee or devisee charged. He is merely charged with execution of the will, he knew that he was not the owner of the
he duty of delivering the very same thing mentioned by the thing
testator. He has no liability for eviction.
ARTICLE 929. If the testator, heir, or legatee owns only a part of, ARTICLE 932. The legacy or devise of a thing which at the
or an interest in the thing bequeathed, the legacy or devise shall be time of the execution of the will already belonged to the legatee or
31
devisee shall be ineffective, even though another person may have ARTICLE 935. The legacy of a credit against a third person or
some interest therein. of the remission or release of a debt of the legatee shall be effective
If the testator expressly orders that the thing be freed from such only as regards that part of the credit or debt existing at the time of
interest or encumbrance, the legacy or devise shall be valid to that the death of the testator.
extent. (866a) In the first case, the estate shall comply with the legacy by
assigning to the legatee all rights of action it may have against the
This article talks of a thing given as a devise or as a legacy debtor. In the second case, by giving the legatee an acquittance,
which at the time of the execution of the will already belongs to should he request one.
the legatee or devisee In both cases, the legacy shall comprise all interests on the
The point to remember is THE TIME OF THE EXECUTION OF credit or debt which may be due the testator at the time of his
THE WILL death. (870a)
In this case, the legacy or devise would be void because it
would be a legal impossibility for the testator to give to the This article refers to LEGACY OF CREDIT and LEGACY
legatee something that the legatee already owns OF REMISSION
Even if the thing is mortgaged to another person, the In Legacy of Credit, the testator (creditor) has some
mortgagor still remains to be the owner of the thing. The legacy receivables from X (debtor). In his will, the testator provides
or devise will still be void. that if upon his death, the said obligation is not yet paid, then,
But if there is an order from the testator that the thing be A will have the right to whatever amount is paid by X or A may
saved from the mortgage, the legacy will be valid only to such proceed against X.
extent. Upon the death of the testator, the estate has to pay the The law says only as regards that part of the credit or
debt so that the property may be saved from the mortgage. debt existing at the time of the death of the testator
When property is acquired after the execution of the will
ARTICLE 933. If the thing bequeathed belonged to the legatee or but before the death, those properties will not pass to the
devisee at the time of the execution of the will, the legacy or devise heir (Article 793)
shall be without effect, even though it may have subsequently In Legacy of Remission, the testator provides upon his
alienated by him. death that whatever obligation X has at that time is already
If the legatee or devisee acquires it gratuitously after such time, condoned or remitted.
he can claim nothing by virtue of the legacy or devise; but if it has This refers to only such part existing at the time of the
been acquired by onerous title he can demand reimbursement from the death of the testator
heir or the estate. (878a) This legacy of remission stands in the same status as
donation because when the testator dies, the value of the
1st paragraph: At the time of the execution of the will, the debt should be added or collated to the gross estate
legatee or devisee is the owner The legacy of remission also carries with it the duty of the
2nd paragraph: At the time of the execution of the will, the estate of the testator to give the legatee an acquittal, like
legatee or devisee is NOT the owner. He can still get something if a note indicating that the legatee has no more debt
he acquires the property subsequently by virtue of onerous title.
If it was acquired by gratuitous title, he can claim nothing from ARTICLE 936. The legacy referred to in the preceding article
the estate of the testator. shall lapse if the testator, after having made it, should bring an
This also applies even if at the time of the execution of the action against the debtor for the payment of his debt, even if such
will, the testator was the owner of the thing. payment should not have been effected at the time of his death.
The legacy to the debtor of the thing pledged by him is
What should be reimbursed? understood to discharge only the right of pledge. (871)
1. If thru sale the price paid therefore
2. If thru barter the value of the thing exchanged This is an example of REVOCATION BY OPERATION
3. If thru an onerous donation (there is consideration, not pure OF LAW
liberality) the value of the burden imposed The law presumes that by filing the action for collection,
4. If thru adjudicacion en pago the value of the credit, the testator is no longer interested to give the legacy
interest and cost Action means judicial action. Mere demand letter is not
sufficient. For the law to set in or for us to presume that there
Who reimburses? is revocation by operation of law, there has to be a judicial
1. The estate if no one has been charged in particular action.
2. The heir, legatee, or devisee who has been charged A legacy that belongs to the legatee or devisee is void.
Even if the legatee pledged the car to the testator, but, that is
ARTICLE 934. If the testator should bequeath or devise just a pledge. There is no grant of ownership to the testator.
something pledged or mortgaged to secure a recoverable debt before The legatee remains to be the owner of the car. So, the status
the execution of the will, the estate is obliged to pay the debt, unless of the legacy is void.
the contrary intention appears. But, as a consequence of that legacy, the law presumes
The same rule applies when the thing is pledged or mortgaged that the testator is said to extinguish the pledge already. The
after the execution of the will. legatee cannot enforce the legacy but he may enforce, as a
Any other charge, perpetual or temporary, with which the thing legal consequence, that the pledge is now extinguished.
bequeathed is burdened, passes with it to the legatee or devisee. Under Article 936, although there is a legacy of remission
(867a) and legacy of credit, still there is no warranty on the part of the
testator as to the existence or legality of the credit or as to the
Here, the property devised or bequeathed is subject to a solvency of the debtor.
pledge or mortgage to secure a recoverable debt
The estate has the obligation to free the land from the ARTICLE 937. A generic legacy of release or remission of debts
mortgage comprises those existing at the time of the execution of the will, but
This will apply even if the mortgage was made after the not subsequent ones. (872)
execution of the will or before
The estate has no obligation to free the property from the This article specifically talks about legacy of release or
burden imposed by a bond because this article only applies to a remission of debt
pledge or a mortgage or anything which secures a recoverable Only those existing at the time of the execution of the will
debt. If the property bond is constituted upon a property, that is The value of the debt remitted should not exceed the
not a recoverable debt. portion which the testator can freely dispose of. It must not
The same thing if the property is leased. The estate has no exceed the free disposal.
obligation to free the land from the lease. The lease is not a
pledge or a mortgage. ARTICLE 938. A legacy or devise made to a creditor shall not
In these cases, the legatee or devisee has the obligation to be applied to his credit, unless the testator so expressly declares.
respect the lease or have the obligation to respect the property In the latter case, the creditor shall have the right to collect the
bond excess, if any, of the credit or of the legacy or devise. (873a)
In this case, the testator is the debtor
32
The reason for the legacy is presumed as the liberality of the The period to reckon if there is really such king of thing
testator existing in the estate of the testator is at the time of the death
But if it is expressly declared by the testator that the legacy of the testator
or devise shall be applied to the debt, then, it may be given effect
But, if it is another kind of property, you cannot force the ARTICLE 942. Whenever the testator expressly leaves the right
creditor to accept something which is not the obligation of choice to the heir, or to the legatee or devisee, the former may
give or the latter may choose whichever he may prefer. (876a)
ARTICLE 939. If the testator orders the payment of what he
believes he owes but does not in fact owe, the disposition shall be This article also talks about alternative legacy or devise
considered as not written. If as regards a specified debt more than the
amount thereof is ordered paid, the excess is not due, unless a GENERAL RULE: The right of choice belongs to the estate, or the
contrary intention appears. heir or legatee or devisee
The foregoing provisions are without prejudice to the fulfillment of EXCEPTION: If the testator will give the right of choice to the heirs
natural obligations. (n) or legatee or devisee favored
In this case, the testator is allotting a certain amount of The legatee or devisee can actually choose things which
money in payment of his obligation which he believes to exist, but are of superior quality or inferior quality or medium quality.
in fact does not exist There is no obligation on his part to choose only the one which
As such, it is considered as not written because the giving is of medium quality.
here is impelled by the wrong belief by the testator
If it is as payment for an obligation, the estate shall pay only ARTICLE 943. If the heir, legatee or devisee cannot make the
the exact amount which is due choice, in case it has been granted him, his right shall pass to his
If the debt of the testator has already prescribed but the heirs; but a choice once made shall be irrevocable. (877a)
testator provided for the payment thereof in his will, it should be
given effect because this is governed by NATURAL OBLIGATION This is a reiteration of Article 940
ARTICLE 940. In alternative legacies or devises, the choice is Limitations of the right of choice: (in alternative
presumed to be left to the heir upon whom the obligation to give the legacies/devisees or in generic/indeterminate legacies/devisees)
legacy or devise may be imposed, or the executor or administrator of 1. The choice is limited to things alternatively the object of
the estate if no particular heir is so obliged. legacy or devise. If it is a generic legacy of a car, he can
If the heir, legatee or devisee, who may have been given the choose only a car. He cannot choose a house.
choice, dies before making it, this right shall pass to the respective 2. He cannot choose an illegal or impossible thing or that
heirs. which could not have been intended by the testator.
Once made, the choice is irrevocable. 3. No right of choice when among legacies or devises only
In the alternative legacies or devises, except as herein provided, one is practicable.
the provisions of this Code regulating obligations of the same kind shall
be observed, save such modifications as may appear from the intention ARTICLE 944. A legacy for education lasts until the legatee is
expressed by the testator. (874a) of age, or beyond the age of majority in order that the legatee may
finish some professional, vocational or general course, provided he
Article 940 talks about right of choice in an alternative pursues his course diligently.
legacy or devise A legacy for support lasts during the lifetime of the legatee, if
This is just like in alternative obligations wherein the delivery the testator has not otherwise provided.
of one of the prestations is sufficient to extinguish the entire If the testator has not fixed the amount of such legacies, it shall
obligation be fixed in accordance with the social standing and the
It is the heir upon whom the obligation to give the legacy or circumstances of the legatee and the value of the estate.
devise is imposed or if, for instance there is no heir charged in If the testator during his lifetime used to give the legatee a
particular, the executor or administrator of the estate, who has certain sum of money or other things by way of support, the same
the obligation to deliver amount shall be deemed bequeathed, unless it be markedly
If before making the choice, the heir, the legatee or devisee disproportionate to the value of the estate. (879a)
dies, the right to make the choice shall be exercised by the heirs
of such heir, legatee or devisee. LEGACY OF EDUCATION
This is not a personal right. This is a transmissible right. GENERAL RULE: The legacy of education lasts up to the age of
Once the heir burdened exercised the right of choice, then majority (18 years old)
the legacy or devise ceases to become an alternative one. It EXCEPTION: Beyond the age of majority in order that the
becomes pure and simple legacy. legatee may finish some professional, vocational or general
Moreover, once the choice is exercised, that choice becomes course, provided he pursues his course diligently
irrevocable
In alternative legacies or devises, the rule in obligations and
contracts with respect to alternative obligations, is also applied LEGACY OF SUPPORT
but only in a suppletory manner because the supreme law here is GENERAL RULE: As long as the legatee is alive the legacy for
really the will of the testator. If anything in the rule in obligations support lasts
and contract conflicts with the will of the testator, then the will of EXCEPTION: The testator can provide otherwise
the testator shall prevail. If the legacy is charged against the estate, then it should
not exceed the value of the free disposal
ARTICLE 941. A legacy of generic personal property shall be valid But if the legacy is charged against an heir or another
even if there be no things of the same kind in the estate. legatee, then the value should not exceed the inheritance of
A devise of indeterminate real property shall be valid only if there that heir or legatee charged with the legacy for support or
be immovable property of its kind in the estate. education
The right of choice shall belong to the executor or administrator
who shall comply with the legacy by the delivery of a thing which is ARTICLE 945. If a periodical pension, or a certain annual,
neither of inferior nor of superior quality. (875a) monthly, or weekly amount is bequeathed, the legatee may petition
the court for the first installment upon the death of the testator, and
This article talks about the difference in the rule on for the following ones which shall be due at the beginning of each
generic/indeterminate personal property and period; such payment shall not be returned, even though the legatee
generic/indeterminate real property should die before the expiration of the period which has
The estate has the obligation to deliver such personal commenced. (880a)
property which is of middle quality. This depends upon the status
of the estate or upon the situation The heir can petition for his allowance or pension after the
But if you are talking of an immovable property, if there if death of the testator for the 1st installment and for the following
there is no other immovable property in the estate, then, the ones, which shall be due at the beginning of each period
devise is void.
When do you petition?
1. The will must be admitted to probate
33
2. After the will is admitted to probate, the legatee can petition ARTICLE 793 NEW CIVIL CODE. Property acquired
the court for the delivery to him of the allowance provided that the after the making of a will shall only pass thereby, as if the
debts and taxes of the estate have been paid first. testator had possessed it at the time of making the will,
should it expressly appear by the will that such was his
ARTICLE 946. If the thing bequeathed should be subject to a intention. (n)
usufruct, the legatee or devisee shall respect such right until it is legally
extinguished. (868a) 2nd paragraph provides that from the moment of death,
the legatee or devisee becomes the owner. We have the
If the thing is subject to usufruct, the estate has no principle of res perit domino, wherein the owner bears the
obligation to free the thing from the usufruct because the legatee risk of the loss. But he shall also bear the benefit of the
or devisee has to respect the usufruct improvement.
This is related to Article 934 But if the loss is by fault of anyone other than the
As long as the charge or burden is not to secure a legatee/devisee, apply the rule on quasi-delict or obligations
recoverable debt, that shall pass on to the heirs, legatees or and contracts.
devisees Example: If there is a delay in the delivery of the thing
given as legacy/devise and the legatee/devisee already
ARTICLE 947. The legatee or devisee acquires a right to the pure demanded for it, and the thing is lost before the delivery, the
and simple legacies or devises from the death of the testator, and estate, the heir or legatee or devisee burdened shall bear the
transmits it to his heirs. (881a) loss.
The heir of the legatee/devisee in Article 948 need not pay
A pure and simple legacy or devise is one that is the testator for the expenses with respect to the production
immediately demandable upon the death of the testator. It is not under Article 443. The testator is not considered as a third
subject to a condition, a term or a mode person. The legatee/devisee is merely succeeding to the rights
As long as the testator is already dead, the right of the of the testator
legatee or devisee becomes vested already. If the legatee or the
devisee dies prior to the delivery of the legacy or devise, his heirs Article 443 NEW CIVIL CODE. He who receives the fruits
may enforce the legacy or devise. has the obligation to pay the expenses made by a third
It is different if the legatee or devisee dies ahead of the person in their production, gathering and preservation.
testator. In that case, the heirs of the legatee or devisee cannot
demand from the estate. When it comes to the free portion, there Applicability of Article 948:
is no right of representation. 1. Simple and pure legacy/devise
If the property is specific, then you acquire the property from 2. Legacies and devises subject to resolutory condition
the testators death 3. Legacies and devises subject to suspensive condition in
If the property is generic, then from the time of the view of the retroactive effect of the condition once it is
selection. Although you have right to the legacy or devise from fulfilled
the time of death but as to the property itself, you have the right
over the property from the time of selection Bar Question: What is a Right of Ademption?
If it is alternative, from the time of selection also RIGHT OF ADEMPTION is the process of giving effect
If it is to be acquired from a stranger, from the time of inter vivos to a disposition mortis causa. He wants to give effect
acquisition to the legacy intervivos which is disposition mortis causa during
If the legacy or devise is subject to a condition, as long as the lifetime of the testator because the testator says the legacy
the condition is fulfilled, it retroacts to the death of the testator is to be effective if and only if I have not done this during my
If the legacy or devise is subject to a term, if the legatee or lifetime.
devisee dies prior to the arrival of the term, he acquired the right
from the time of death but the right to the property vests only ARTICLE 949. If the bequest should not be of a specific and
upon the arrival of the term determinate thing, but is generic or of quantity, its fruits and
interests from the time of the death of the testator shall pertain to
the legatee or devisee if the testator has expressly so ordered.
(884a)
ARTICLE 948. If the legacy or devise is of a specific and
determinate thing pertaining to the testator, the legatee or devisee In Article 949, the devise or legacy is a generic thing
acquires the ownership thereof upon the death of the testator, as well Money is generic, unless serial number is provided
as any growing fruits, or unborn offspring of animals, or uncollected The interest accrues only from the time of default. There
income; but not the income which was due and unpaid before the is default when there is already demand.
latter's death.
From the moment of the testator's death, the thing bequeathed GENERAL RULE: The right to the fruit does not pertain to the
shall be at the risk of the legatee or devisee, who shall, therefore, bear legatee/devisee prior to selection and even after the death of the
its loss or deterioration, and shall be benefited by its increase or testator
improvement, without prejudice to the responsibility of the executor or EXCEPTION: If the testator expressly provides that the
administrator. (882a) legatee/devisee will still get the fruits prior to selection
This talks about specific or determinate thing ARTICLE 950. If the estate should not be sufficient to cover all
If a parcel of land is devised, growing fruits and crops at the the legacies or devises, their payment shall be made in the following
time of the death of the testator shall be included in the delivery order:
to the devisee. Those which are already harvested or gathered no (1) Remuneratory legacies or devises;
longer form part of the devise or legacy. Only the growing crops (2) Legacies or devises declared by the testator to be preferential;
are included, by virtue of accession. (3) Legacies for support;
Unborn offsprings are also included (4) Legacies for education;
Uncollected income are also include. Uncollected income (5) Legacies or devises of a specific, determinate thing which forms
are income that should have accrued after the death of the a part of the estate;
testator (6) All others pro rata. (887a)
Accrued means it is already due and demandable
After-acquired properties (under Article 793) are not to be Article 950 talks about the order of payment if the estate
included because they were acquired after the institution of the is not sufficient to pay all the legacies or devises (RPSESA)
will up to the time before the death of the testator R remuneratory legacies or devises
P - preferred
ARTICLE 781 NEW CIVIL CODE. The inheritance of a S - support
person includes not only the property and the transmissible E - education
rights and obligations existing at the time of his death, but S specific things
also those which have accrued thereto since the opening of A all others
the succession. (n) 1. Remuneratory legacies or devises
34
Those which are made by the testator in consideration of the The debts and obligations of the estate must first be paid
service made by the legatee or devisee but that which does not and afterwards, if there is excess, we now have the delivery of
constitute a recoverable debt the legacy, devise or inheritance.
2. Preferred legacy or devise
Those which are declared by the testator to be preferred ARTICLE 954. The legatee or devisee cannot accept a part of
3. Support the legacy or devise and repudiate the other, if the latter be
Under the Family Code, support comprises everything onerous.
indispensable food, shelter, clothing, education. Should he die before having accepted the legacy or devise,
In succession, if we are talking of support, we do not include leaving several heirs, some of the latter may accept and the others
education may repudiate the share respectively belonging to them in the legacy
4. Education or devise. (889a)
5. Specific Legacy or Devise
Even if it is specific legacy or devise but it is not yet on the This article refers to one legacy or devise, which partly
estate and it is to be acquired from another person or another onerous and partly gratuitous
estate, it is not included in the legacy or devise of a specific The devisee cannot just accept the part which has no
determinate thing. If the legacy/devise is to be taken from burden imposed and repudiate the part which is onerous
another person to be given to the legatee/devisee, that falls under But he can choose to accept the onerous and reject the
all others pro-rata gratuitous part
6. Among all other pro-rata If the legatee or devisee dies, his right may be exercise by
his heirs
Order under Article 911:
1. Legitime
ARTICLE 955. The legatee or devisee of two legacies or
2. Donations inter vivos
devises, one of which is onerous, cannot renounce the onerous one
3. Preferred legacies/devises
and accept the other. If both are onerous or gratuitous, he shall be
4. All others pro rata
free to accept or renounce both, or to renounce either. But if the
testator intended that the two legacies or devises should be
Article 911 Article 950 inseparable from each other, the legatee or devisee must either
This article is applied when This article is applied when there accept or renounce both.
there is/are compulsory heir/s NO compulsory heirs and their Any compulsory heir who is at the same time a legatee or
AND/OR there are donations legitimes are in danger of being devisee may waive the inheritance and accept the legacy or devise,
inter vivos impaired AND/OR there are NO or renounce the latter and accept the former, or waive or accept
donations inter vivos. All you have both. (890a)
to do is, among the
legacies/devises which of them
Article 955 refers to two or more legacies or devises
should be given priority over the
The same rule - the legatee or devisee cannot renounce
other. If there are compulsory
the onerous and accept the gratuitous.
heirs but their legitimes are not
If both are onerous or gratuitous, he can just accept or
impaired, you apply Article 950.
renounce both or either, unless the testator intends that the
If there are no compulsory heirs, there is no need to collate
two legacies or devises shall be inseparable
the donations because the purpose of collation is only to
A compulsory heir who is a legatee or devisee, may waive
determine the legitime.
his inheritance and accept the legacy or either way, accept the
inheritance and renounce the legacy or accept both or
ARTICLE 951. The thing bequeathed shall be delivered with all its renounce both
accessions and accessories and in the condition in which it may be
upon the death of the testator. (883a)
ARTICLE 956. If the legatee or devisee cannot or is unwilling
to accept the legacy or devise, or if the legacy or devise for any
ARTICLE 952. The heir, charged with a legacy or devise, or the reason should become ineffective, it shall be merged into the mass
executor or administrator of the estate, must deliver the very thing of the estate, except in cases of substitution and of the right of
bequeathed if he is able to do so and cannot discharge this obligation accretion. (888a)
by paying its value.
Legacies of money must be paid in cash, even though the heir or If the legatee or devisee does not want to accept or
the estate may not have any. cannot accept or is disqualified from accepting, it shall be
The expenses necessary for the delivery of the thing bequeathed merged into the mass of the estate. It shall go by way of legal
shall be for the account of the heir or the estate, but without prejudice succession, subject to the rights of substitution and the rights
to the legitime. (886a) of accretion
Remember that we have the rule on ISRAI as to the
The obligation of the heir, legatee, devisee or estate charged order which has to be followed in case there is vacancy in the
is to deliver the very same thing to be given portion inherited:
The estate cannot just discharge the legacy or devise by 1. INSTITUTION
paying the value of the thing devised or bequeathed 2. SUBSTITUTION
If the legacy is for cash, even if the estate has no cash, the 3. REPRESENTATION
estate has to sell property so that it may generate cash 4. ACCRETION
Even in alternative legacies/devises, you have to deliver the 5. INTESTATE SUCCESSION
thing which is contemplated within the selection
The burdened heir, legatee/devisee or the estate shall bear ARTICLE 957. The legacy or devise shall be without effect:
the expenses for the delivery of the thing bequeathed or devised. (1) If the testator transforms the thing bequeathed in such a
If he is a compulsory heir, the expenses should not such as to manner that it does not retain either the form or the denomination
affect the legitime of compulsory heir. it had;
(2) If the testator by any title or for any cause alienates the thing
ARTICLE 953. The legatee or devisee cannot take possession of bequeathed or any part thereof, it being understood that in the
the thing bequeathed upon his own authority, but shall request its latter case the legacy or devise shall be without effect only with
delivery and possession of the heir charged with the legacy or devise, respect to the part thus alienated. If after the alienation the
or of the executor or administrator of the estate should he be thing should again belong to the testator, even if it be by reason
authorized by the court to deliver it. (885a) of nullity of the contract, the legacy or devise shall not thereafter
be valid, unless the reacquisition shall have been effected by virtue
There should be an authority by the court that the thing shall of the exercise of the right of repurchase;
now be delivered to the legatee or devisee (3) If the thing bequeathed is totally lost during the lifetime of the
A legatee or devisee, from the moment of death, testator, or after his death without the heir's fault.
theoretically, is already entitled to the legacy or devise. But he Nevertheless, the person obliged to pay the legacy or devise
cannot immediately demand the delivery because there has to be shall be liable for eviction if the thing bequeathed should not have
proceedings conducted. been determinate as to its kind, in accordance with the
We are talking of testate proceedings because this is legacy provisions of Article 928. (869a)
or devise.
35
Article 957 talks of revocation of a legacy or devise by there are no relatives within that line, then, the estate shall be
operation of law. Because of the act performed by the testator, given in favor of the State.
the law presumes that there is revocation. If it is a direct line, there is no limit. But if you are talking
of a collateral line, only within the 5th degree of consanguinity.
1. TRANSFORMS THE THING If the testators words are to all those who are entitled
The thing here refers to a specific thing because if it is a thereto, he would be referring to the legal or intestate heirs.
generic thing then you do not know prior to selection which We follow the rule on intestate succession and thus, we are not
of the thing in the estate of the testator is being bequeathed limited by only one rule on proximity.
or devised If the testator says I am giving this house and lot to the
The transformation must be IN FORM (appearance of the relatives of my wife, Article 959 cannot be applied because
thing) or IN DENOMINATION (name being given to the Article 959 only refers to the testators relatives.
thing)
When the testator transforms the thing such that it does not
retain the form or the denomination it had, then, there is CHAPTER 3
REVOCATION of the legacy or devise and the legacy/devise Legal or Intestate Succession
becomes ineffective SECTION 1
2. ALIENATES THE THING General Provisions
The alienation made by the testator should be made with the
intent to part with the thing ARTICLE 960. Legal or intestate succession takes place:
If the testator alienates PART of the property then the (1) If a person dies without a will, or with a void will, or one which
revocation is only as to the part alienated. So only partial has subsequently lost its validity;
not entire revocation (2) When the will does not institute an heir to, or dispose of all the
If after the alienation the thing should again belong to the property belonging to the testator. In such case, legal
testator, the law says the legacy or devise shall not succession shall take place only with respect to the property
thereafter be valid of which the testator has not disposed;
Even if the alienation was void by reason of nullity of the (3) If the suspensive condition attached to the institution of heir
contract so that the property returns to the testator, still the does not happen or is not fulfilled, or if the heir dies before the
legacy or devise shall not be valid testator, or repudiates the inheritance, there being no
If the alienation was annulled because there was fraud or substitution, and no right of accretion takes place;
intimidation or mistake on the part of the testator, the devise (4) When the heir instituted is incapable of succeeding, except in
would be valid because the law presupposes a voluntary cases provided in this Code. (912a)
alienation by the testator
If the reacquisition shall have been effected by virtue of the Article 960 gives you the instances when there will be
exercise of the right repurchase, the devise or legacy would legal or intestate succession
still be valid In legal or intestate succession it is based on the
The right to repurchase must be included in the contract of presumed will of the testator
sale itself or in the contract wherein the testator alienated
the thing devised or bequeathed because if it is an absolute 1. Without a will, void will or subsequently lost its
sale and then, subsequently, he repurchases the property, validity
the devise should be void or it is revoked If a person dies without a will, his estate will go by legal
If subsequently, the legatee or devisee acquires the thing succession
devised or bequeathed, then, it depends whether or not his The will becomes void when it does not comply with the
acquisition is by onerous title or by gratuitous title formalities required by law
3. LOST OF THE THING By virtue of the revocation, the will loses validity.
A thing is considered LOST when it perishes, goes out of Therefore, you cannot give effect to the will and the estate
commerce or disappears in such a way that its existence is will be disposed of by way of intestacy
unknown or it cannot be recovered 2. No institution of heir
The thing is lost WITHOUT the fault of the testator An example is when the will only provides for
If the loss is the fault of the heir charged with the obligation disinheritance wherein the will is effective as to the
to deliver, then, the heir has the obligation to pay the disinheritance and the rest of the estate shall go by
legatee for the value of the thing lost intestate succession
When the thing is not specific, it is generic or determinate, The will does not dispose of all the property belonging to
then the choice pertains to the estate or the legatee/devisee the testator. In this case, there is mixed succession
or the heir charged, in which case they should not deliver a 3. Suspensive condition is not fulfilled, predecease,
thing which has defect repudiates
Suspensive condition is one wherein the institution is
ARTICLE 958. A mistake as to the name of the thing bequeathed subject to the fulfillment of a condition. If the condition
or devised, is of no consequence, if it is possible to identify the thing does not happen, the institution cannot be given effect.
which the testator intended to bequeath or devise. (n) If the heir dies ahead of the testator and there is no
representative to succeed, then, there is intestate
This article is related to Article 789 and 844 succession
If there is a mistake as to the name of the thing, it is still In case of repudiation, there being no substitution,
possible to determine what is the thing referred to by the testator no representative and no right of accretion then, there is
as a devise or legacy. You can use the rules of interpretation, intestacy.
especially, those rules in latent or patent ambiguity. 4. Incapacity
So, the devise or legacy remains valid If incapacitated, it shall go by way of legal succession
ARTICLE 959. A disposition made in general terms in favor of the Other instances where legal or intestate succession takes
testator's relatives shall be understood to be in favor of those nearest place:
in degree. (751) 1. Preterition
2. Improper disinheritance
Article 959 talks of a COLLECTIVE INSTITUTION, wherein 3. Fulfillment of a resolutory condition
there is a disposition made in general terms in favor of the 4. Arrival of the resolutory period
testators relatives
Under this article, the only rule to be followed is the RULE Forced Succession Legal/intestate succession
OF PROXIMITY, the nearer relatives exclude the farther. Succession to the legitime The dispositions are provided for
There is no right of representation here and we do not follow regardless of the will of the by law because it is based on the
the rule that those who are in the descending line are favored testator. Even if it is against presumed will of the testator.
over those in the ascending line and that those who are in the the desire of the testator, but
direct line are favored over those who are in the collateral line. the heirs are compulsory heirs
We just follow one rule. then, the testator has to give
The law recognizes only those who are within the 5 th degree to these compulsory heirs.
within the collateral line as the legal relatives of the testator. If
36
ARTICLE 961. In default of testamentary heirs, the law vests the In the direct line, ascent is made to the common ancestor.
inheritance, in accordance with the rules hereinafter set forth, in the Thus, the child is one degree removed from the parent, two from the
legitimate and illegitimate relatives of the deceased, in the surviving grandfather, and three from the great-grandparent.
spouse, and in the State. (913a) In the collateral line, ascent is made to the common ancestor
and then descent is made to the person with whom the computation
The legal and intestate heirs of the decedent are legitimate is to be made. Thus, a person is two degrees removed from his
children and descendants, illegitimate children or descendants. In brother, three from his uncle, who is the brother of his father, four
the absence of the legitimate children, the legitimate parents or from his first cousin, and so forth. (918a)
ascendants, we have the surviving spouse and the state.
This article does not yet talk about the preference or order ARTICLE 967. Full blood relationship is that existing between
but as to who are entitled to the estate in default of testamentary persons who have the same father and the same mother.
heirs Half blood relationship is that existing between persons who
Not all legal/intestate heirs are compulsory heirs. But all have the same father, but not the same mother, or the same
compulsory heirs are legal heirs. mother, but not the same father. (920a)
Brothers and sisters are legal heirs but they are not
compulsory heirs ARTICLE 968. If there are several relatives of the same
There is no disinheritance in legal succession because degree, and one or some of them are unwilling or incapacitated to
disinheritance occurs only when there is a will and that the will succeed, his portion shall accrue to the others of the same degree,
must be a valid will save the right of representation when it should take place. (922)
But there is EXCLUSION where legal heirs who are NOT
compulsory heirs are not given anything in the will
Even if you can exclude a legal heir who is not a compulsory ARTICLE 969. If the inheritance should be repudiated by the
heir, you cannot exclude the State nearest relative, should there be one only, or by all the nearest
If you do not have heirs within the 5 th degree then, the relatives called by law to succeed, should there be several, those of
property has to go to the State the following degree shall inherit in their own right and cannot
There is representation of the excluded legal heirs represent the person or persons repudiating the inheritance. (923)
Kinds of exclusion: This article talks about what happens when there is
1) Express Exclusion repudiation
2) Implied Exclusion The person who repudiates the inheritance CANNOT be
represented
ARTICLE 962. In every inheritance, the relative nearest in degree
excludes the more distant ones, saving the right of representation SUBSECTION 2
when it properly takes place. Right of Representation
Relatives in the same degree shall inherit in equal shares, subject
to the provisions of article 1006 with respect to relatives of the full and ARTICLE 970. Representation is a right created by fiction of
half blood, and of article 987, paragraph 2, concerning division law, by virtue of which the representative is raised to the place and
between the paternal and maternal lines. (921a) the degree of the person represented, and acquires the rights which
the latter would have if he were living or if he could have inherited.
RULE ON PROXIMITY (924a)
The nearer excludes the farther
Instances where there is right of representation:
RULE OF EQUAL DIVISION 1) Predecease
GENERAL RULE: Relatives in the same degree shall inherit in equal 2) Incapacity
share 3) Disinheritance
EXCEPTIONS:
(1) Article 1006 with respect to the relatives of full The right of representation takes place in both testate and
blood and half blood. In legal succession, the full blood relatives intestate succession
are entitled to twice as much as those of the half-blood relatives. Disinheritance is only in testate succession because you
(2) Article 987 concerning the division between the have to have a will
maternal and paternal lines In testate succession, representation covers only the
(3) Right of representation legitime
(4) In legal succession and the same in testamentary In legal or intestate succession, the right of
succession, illegitimate children only get of the share of one representation, when proper, covers ALL that the person being
legitimate child. represented would have inherited
The right of representation covers not only the properties
SUBSECTION 1 but also the transmissible rights and obligations
Relationship In adoption, the relationship that is created is only
between the adopter and the adoptee
ARTICLE 963. Proximity of relationship is determined by the If the adopter dies ahead of his parents, the adoptee
number of generations. Each generation forms a degree. (915) cannot represent the adopter
The adoptee can inherit from the adopter
Relationship is blood (consanguinity) or marriage (affinity) An adopted child cannot represent
tie uniting a person to another person Neither may an adopted child be represented
ARTICLE 964. A series of degrees forms a line, which may be ARTICLE 971. The representative is called to the succession by
either direct or collateral. the law and not by the person represented. The representative does
A direct line is that constituted by the series of degrees among not succeed the person represented but the one whom the person
ascendants and descendants. represented would have succeeded. (n)
A collateral line is that constituted by the series of degrees among
persons who are not ascendants and descendants, but who come from Representative inherits not from the person represented
a common ancestor. (916a) but from the person to whom the person represented would
have inherited
ARTICLE 965. The direct line is either descending or ascending.
The former unites the head of the family with those who descend ARTICLE 972. The right of representation takes place in the
from him. direct descending line, but never in the ascending.
The latter binds a person with those from whom he descends. In the collateral line, it takes place only in favor of the children
(917) of brothers or sisters, whether they be of the full or half blood. (925)
In the collateral line, the right of representation takes

ARTICLE 966. In the line, as many degrees are counted as there
place only in favor of the children of brothers or sisters
are generations or persons, excluding the progenitor.
(nephews or nieces)
37
Right of representation never takes place in the ascending ARTICLE 983. If illegitimate children survive with legitimate
line children, the shares of the former shall be in the proportions
prescribed by article 895. (n)
ARTICLE 973. In order that representation may take place, it is
necessary that the representative himself be capable of succeeding the The shares of the illegitimate children are to be taken only
decedent. (n) from the half, which is the free portion
The representative must be capacitated to inherit ARTICLE 984. In case of the death of an adopted child, leaving
no children or descendants, his parents and relatives by
ARTICLE 974. Whenever there is succession by representation, consanguinity and not by adoption, shall be his legal heirs. (n)
the division of the estate shall be made per stirpes, in such manner
that the representative or representatives shall not inherit more than The adopted child shall become the legal heir of his
what the person they represent would inherit, if he were living or could adoptive parents and shall also remain the legal heir of his
inherit. (926a) natural parents
In case of the death of the adopted child, his parents and
Remember that PER STIRPES means inheritance by all relatives by nature, and not by adoption, shall be his legal heirs
those within the group inheriting in equal shares
SUBSECTION 2
ARTICLE 975. When children of one or more brothers or sisters of Ascending Direct Line
the deceased survive, they shall inherit from the latter by
representation, if they survive with their uncles or aunts. But if they ARTICLE 985. In default of legitimate children and
alone survive, they shall inherit in equal portions. (927) descendants of the deceased, his parents and ascendants shall
inherit from him, to the exclusion of collateral relatives. (935a)
ARTICLE 976. A person may represent him whose inheritance he
has renounced. (928a) Parents and ascendants referred to in this article should be
legitimate
ARTICLE 977. Heirs who repudiate their share may not be
represented. (929a) ARTICLE 986. The father and mother, if living, shall inherit in
equal shares.
Should one only of them survive, he or she shall succeed to the
A renouncer may represent but he may not be represented
entire estate of the child. (936)
A renouncer, for motives of his own, does so voluntarily. His
act of repudiation takes away his right to dispose of the property
In cases of incapacity or disinheritance, however, the loss is ARTICLE 987. In default of the father and mother, the
involuntary. The children of the incapacitated or disinherited ascendants nearest in degree shall inherit.
person should not be deprived of the right of representation. Should there be more than one of equal degree belonging to
They should not suffer for having an unworthy parent the same line they shall divide the inheritance per capita; should
they be of different lines but of equal degree, one-half shall go to
SECTION 2 the paternal and the other half to the maternal ascendants. In each
Order of Intestate Succession line the division shall be made per capita. (937)
SUBSECTION 1
Descending Direct Line SUBSECTION 3
Illegitimate Children
ARTICLE 978. Succession pertains, in the first place, to the
descending direct line. (930) ARTICLE 988. In the absence of legitimate descendants or
ascendants, the illegitimate children shall succeed to the entire
Descendants are preferred estate of the deceased. (939a)
The nearer excludes the farther
Compulsory heirs, with the legitimate descendant, are ARTICLE 989. If, together with illegitimate children, there
concurrent intestate heirs should survive descendants of another illegitimate child who is dead,
the former shall succeed in their own right and the latter by right of
representation. (940a)
ARTICLE 979. Legitimate children and their descendants succeed
the parents and other ascendants, without distinction as to sex or age, Descendants in this article refers to legitimate and
and even if they should come from different marriages. illegitimate descendants, since the law does not distinguish
An adopted child succeeds to the property of the adopting parents The grandchildren inherit by right of representation in
in the same manner as a legitimate child. (931a) order not to prejudice the children left
ARTICLE 980. The children of the deceased shall always inherit ARTICLE 990. The hereditary rights granted by the two
from him in their own right, dividing the inheritance in equal shares. preceding articles to illegitimate children shall be transmitted upon
(932) their death to their descendants, who shall inherit by right of
representation from their deceased grandparent. (941a)
This is true even if the children come from different
marriages, for after all, the dead parent is the common parent According to Paras, it is believed that Articles 989 and 990
apply not only to predecease but also to incapacity and
ARTICLE 981. Should children of the deceased and descendants disinheritance
of other children who are dead, survive, the former shall inherit in their In repudiation, there is no right of representation
own right, and the latter by right of representation. (934a)
ARTICLE 991. If legitimate ascendants are left, the illegitimate
children shall divide the inheritance with them, taking one-half of the
ARTICLE 982. The grandchildren and other descendants shall
estate, whatever be the number of the ascendants or of the
inherit by right of representation, and if any one of them should have
illegitimate children. (942, 841a)
died, leaving several heirs, the portion pertaining to him shall be
divided among the latter in equal portions. (933)
If illegitimate children survive with legitimate ascendants,
the sharing would be one-half
When the children are ALL dead, the grandchildren inherit by
When there are illegitimate children and no legitimate
right of representation, provided that representation is proper
children, the legitimate ascendants inherit half in intestate
When ALL the children repudiate, there is no right of
succession
representation and therefore the grandchildren inherit in heir own
When there are legitimate children, legitimate ascendants
right, per capita and in equal portions
are excluded
Although illegitimate children are placed 3 rd in the order of
intestate succession, the presence of the legitimate
38
descendants and ascendants does not exclude them. They are
concurring intestate heirs. Heirs of the LEGITIMATE CHILD:
1. Legitimate children and heir legitimate descendants
GENERAL RULE for all cases of PARTIAL INTESTACY: 2. Legitimate parents and other legitimate ascendants
Charge the legacies to the intestate shares of those given by law 3. Illegitimate children and their descendants
on intestate succession more than their respective legitimes, without 4. Surviving spouse, without prejudice to the rights of
impairing said legitimes. Moreover, the charging must be proportionate brothers & sisters, nephews & nieces should there be any
to the amount in the intestate share over and above that given by law 5. Brothers & sisters subject to Article 992. (Illegitimate
as legitime. brothers & sisters cannot inherit from him)
6. Nephews & nieces subject to Article 992;
ARTICLE 992. An illegitimate child has no right to inherit ab 7. Collateral relatives up to the 5th degree subject to Article
intestato from the legitimate children and relatives of his father or 992
mother; nor shall such children or relatives inherit in the same manner 8. The State.
from the illegitimate child. (943a)
Legitimate children excludes the parents, brothers &
Article 992 is the Principle of Absolute Separation with sisters, nephews & nieces and other collateral relatives
the legitimate family and the illegitimate family. There is Legitimate children concur with the spouse
Reciprocal prohibition. This is prohibition is also called the IRON- Illegitimate children concur with the spouse
CLAD BARRIER. Illegitimate excludes brothers & sisters, nephews & nieces
If the person to be represented is an ILLEGITIMATE, he can of the deceased
be represented by his legitimate and illegitimate children Parents also excludes the brothers & sisters, nephews &
If the person to represented is a LEGITIMATE child, he can nieces and other collateral relatives
only be represented by his own legitimate children Parents concur with the surviving spouse
Surviving spouse concur with the brothers & sisters or
Articles 902, 989 & 992 Article 992 nephews & nieces of the deceased
General Rule: These speak of Exception: Even if illegitimate
the successional right of children have the right to SUBSECTION 4
illegitimate children which rights succeed from their parents they Surviving Spouse
are transmitted to their cannot inherit from the
descendant upon their death RELATIVE of their parents. ARTICLE 995. In the absence of legitimate descendants and
whether legitimate or ascendants, and illegitimate children and their descendants, whether
illegitimate. legitimate or illegitimate, the surviving spouse shall inherit the entire
estate, without prejudice to the rights of brothers and sisters,
Table of Intestate Shares: nephews and nieces, should there be any, under Article 1001. (946a)
Illegitimate Children Illegitimate Child alone ALL ARTICLE 996. If a widow or widower and legitimate children or
Surviving Spouse descendants are left, the surviving spouse has in the succession the
Illegitimate Children Legitimate Parents Alone All same share as that of each of the children. (834a)
Surviving spouse
Legitimate Parents Article 996 speaks of children, and does not expressly
Illegitimate Children - Illegitimate Parents Alone All provide for a case when there is only one legitimate child,
Legitimate Parents unlike in the case of the legitime
Legitimate Parents Surviving Spouse Alone - All If there is only one legitimate child concurring with the
Surviving Spouse surviving spouse and there are no other relatives, both will get
Illegitimate Parents Legitimate Child Alone All equal intestate shares, in accordance with the clear intent of
Surviving Spouse the law to consider the spouse as a child
Surviving spouse 1 Legitimate Child
Brothers & nieces, nephews & Surviving spouse ARTICLE 997. When the widow or widower survives with
nieces legitimate parents or ascendants, the surviving spouse shall be
2 or more legitimate child ) entitled to one-half of the estate, and the legitimate parents or
Surviving spouse ) ascendants to the other half. (836a)
Consid
er spouse as 1 legitimate child ARTICLE 998. If a widow or widower survives with illegitimate
and divide estate by total children, such widow or widower shall be entitled to one-half of the
number inheritance, and the illegitimate children or their descendants,
whether legitimate or illegitimate, to the other half. (n)
ARTICLE 993. If an illegitimate child should die without issue,
either legitimate or illegitimate, his father or mother shall succeed to
ARTICLE 999. When the widow or widower survives with
his entire estate; and if the child's filiation is duly proved as to both
legitimate children or their descendants and illegitimate children or
parents, who are both living, they shall inherit from him share and
their descendants, whether legitimate or illegitimate, such widow or
share alike. (944a)
widower shall be entitled to the same share as that of a legitimate
child. (n)
ARTICLE 994. In default of the father or mother, an illegitimate
child shall be succeeded by his or her surviving spouse, who shall be ARTICLE 1000. If legitimate ascendants, the surviving spouse,
entitled to the entire estate. and illegitimate children are left, the ascendants shall be entitled to
If the widow or widower should survive with brothers and sisters, one-half of the inheritance, and the other half shall be divided
nephews and nieces, she or he shall inherit one-half of the estate, and between the surviving spouse and the illegitimate children so that
the latter the other half. (945a) such widow or widower shall have one-fourth of the estate, and the
illegitimate children the other fourth. (841a)
Heirs of the ILLEGITIMATE CHILD:
1. Legitimate children and other legitimate descendants
ARTICLE 1001. Should brothers and sisters or their children
2. Illegitimate children and other descendants
survive with the widow or widower, the latter shall be entitled to
3. Illegitimate parents; ( NB: An illegitimate child has no
one-half of the inheritance and the brothers and sisters or their
legitimate ascendants)
children to the other half. (953, 837a)
4. Surviving spouse
5. Illegitimate brothers and sisters subject to article 992;
6. Nephews & nieces subject to rule in article 992 (because Brothers and sisters do not concur with recognized
nephews & nieces who are legitimate cannot inherit from the illegitimate children of the deceased. In fact, the former are
illegitimate child.) excluded by the latter.
7. Other collateral relatives up to the 5th civil degree of
consanguinity ARTICLE 1002. In case of a legal separation, if the surviving
8. The State spouse gave cause for the separation, he or she shall not have any
of the rights granted in the preceding articles. (n)
39
ARTICLE 1010. The right to inherit ab intestato shall not extend

Rules for SURVIVING SPOUSE: beyond the fifth degree of relationship in the collateral line. (955a)
The decedent and the surviving spouse must be legally
married. The collateral relatives are the brothers, sisters,
The surviving spouse must not be the guilty party when nephews and nieces, and the uncles and aunts and cousins.
there is legal separation.
There must be a decree of legal separation. If there is no Rules for COLLATERAL RELATIVES:
decree, she is not disqualified but she can be disinherited. The nearer relative excludes the farther subject
If there is a reconciliation between the surviving spouse and to the right of representation when proper.
the decedent prior to the death of the decedent, even if If they are all in the same degree, those who
there is a decree of legal separation, the surviving spouse is are in direct line are preferred over those who are in the
now qualified. collateral line
In intestate succession there is no similar rule on death in If both are in the direct line, those who are in
articulo mortis. the descending line are favored over those who are in the
If there is a surviving spouse with 1 legitimate child and 1 ascending line. That is why the descendants excludes the
illegitimate child, there is no such provision in intestate parents or ascendants.
succession applicable in this case. The rule is, give to the If both are in the collateral and the same
legitimate child then the illegitimate child gets of the degree, those who are in the descending are favored over
share of the legitimate child (same as testate succession). those in the ascending. That is why the nephews & nieces
The spouse gets the remainder (which is ) because in are favored over the uncles & aunts.
testate succession the spouse gets . All of the brothers & sisters on the full blood will
If there is partial intestacy, you charge the legacy/devise to inherit in equal shares.
the share of one gets more by intestacy than by testacy. In Those who are in the half blood, as long as
testate, the share of the spouse concurring with the parent is married, not illegitimate, entitled to of the share of the full
, while in intestacy . As long as the legitime of the blood.
surviving spouse is not impaired. With respect to the heirs in the collateral line,
the right of representation extends only to the nephews &
SUBSECTION 5 nieces (children of brothers & sisters).
Collateral Relatives Grandnephews & nieces and the great
grandnephews & nieces can no longer represent.
ARTICLE 1003. If there are no descendants, ascendants, Between uncles & aunts vis--vis the nephews &
illegitimate children, or a surviving spouse, the collateral relatives shall nieces, the nephews & nieces are preferred
succeed to the entire estate of the deceased in accordance with the
following articles. (946a)
The collaterals referred to in this article are intestate, but not SUBSECTION 6
compulsory heirs The State
Among said collaterals, the nearer excludes the farther
Collaterals cannot inherit in the presence of descendants ARTICLE 1011. In default of persons entitled to succeed in
accordance with the provisions of the preceding Sections, the State
ARTICLE 1004. Should the only survivors be brothers and sisters of shall inherit the whole estate. (956a)
the full blood, they shall inherit in equal shares. (947)
ARTICLE 1012. In order that the State may take possession of
ARTICLE 1005. Should brothers and sisters survive together with the property mentioned in the preceding article, the pertinent
nephews and nieces, who are the children of the descendant's brothers provisions of the Rules of Court must be observed. (958a)
and sisters of the full blood, the former shall inherit per capita, and the
latter per stirpes. (948) Rule 91 (Escheats) of the Rules of Court shall be observed
Although it is a fact that brothers and sisters of a decedent, ARTICLE 1013. After the payment of debts and charges, the
and their children, are collateral heirs, they are not given any personal property shall be assigned to the municipality or city where
share in the inheritance if there is a will instituting the widow as the deceased last resided in the Philippines, and the real estate to
the sole heir of the estate the municipalities or cities, respectively, in which the same is
situated.
ARTICLE 1006. Should brothers and sisters of the full blood If the deceased never resided in the Philippines, the whole
survive together with brothers and sisters of the half blood, the former estate shall be assigned to the respective municipalities or cities
shall be entitled to a share double that of the latter. (949) where the same is located.
Such estate shall be for the benefit of public schools, and public
The relative of the full blood does not exclude the relatives of charitable institutions and centers, in such municipalities or cities.
the half-blood The court shall distribute the estate as the respective needs of each
beneficiary may warrant.
The court, at the instance of an interested party, or on its own
ARTICLE 1007. In case brothers and sisters of the half blood,
motion, may order the establishment of a permanent trust, so that
some on the father's and some on the mother's side, are the only
only the income from the property shall be used. (956a)
survivors, all shall inherit in equal shares without distinction as to the
origin of the property. (950)
While the State actually inherits, still assignment of the
properties to the proper municipalities must be made
ARTICLE 1008. Children of brothers and sisters of the half blood The law makes a distinction as to whether or not the
shall succeed per capita or per stirpes, in accordance with the rules laid
deceased resided in the Philippines
down for brothers and sisters of the full blood. (915)
ARTICLE 1014. If a person legally entitled to the estate of the
ARTICLE 1009. Should there be neither brothers nor sisters, nor deceased appears and files a claim thereto with the court within five
children of brothers or sisters, the other collateral relatives shall years from the date the property was delivered to the State, such
succeed to the estate. person shall be entitled to the possession of the same, or if sold, the
The latter shall succeed without distinction of lines or preference municipality or city shall be accountable to him for such part of the
among them by reason of relationship by the whole blood. (954a) proceeds as may not have been lawfully spent. (n)
If the deceased is survived by children of a predeceased full In the absence of ALL those in the direct line and ALL
blood sister, and by children of a predeceased half blood brother, those within the 5th degree in the collateral line, the State
each of the first group gets twice the share of each of the second succeeds
group CADUCIARY RIGHT is the right of the state to succeed
The absence of brothers, sisters, nephews, and nieces of the A claim must be filed within 5 years from the date the
decedent is a precondition of the other collaterals property was delivered to the State
40
CHAPTER 4 ARTICLE 1020. The heirs to whom the inheritance accrues shall
Provisions Common to Testate and Intestate Successions succeed to all the rights and obligations which the heir who
SECTION 1 renounced or could not receive it would have had. (984)
Right of Accretion
This is the same in substation. The rights and obligations
ARTICLE 1015. Accretion is a right by virtue of which, when two shall pass to the others to whom the shares will accrue
or more persons are called to the same inheritance, devise or legacy, EXCEPTIONS:
the part assigned to the one who renounces or cannot receive his 1. If the testator expressly provide that the other heirs will
share, or who died before the testator, is added or incorporated to that not be subject to the same rights and obligations
of his co-heirs, co-devisees, or co-legatees. (n) 2. If the rights and obligations are personal to the heir whose
portion becomes vacant
Accretion is based on the presumed will of the testator that
he prefers to give certain properties to certain individuals rather ARTICLE 1021. Among the compulsory heirs the right of
than that the property shall go by way of intestacy accretion shall take place only when the free portion is left to two or
Accretion is proper in both testate and intestate succession more of them, or to any one of them and to a stranger.
In testate succession, it is proper only with respect to the Should the part repudiated be the legitime, the other co-heirs
free portion shall succeed to it in their own right, and not by the right of
In intestate succession, it is proper with the entire portion accretion. (985)
There can be no accretion insofar as the legitime is

concerned
Accretion, if it takes place, concerns only the free portion
ARTICLE 1022. In testamentary succession, when the right of

accretion does not take place, the vacant portion of the instituted
Requisites of Accretion:
heirs, if no substitute has been designated, shall pass to the legal
1. There is only one inheritance, devise or legacy (unity of
heirs of the testator, who shall receive it with the same charges and
object);
obligations. (986)
2. Plurality of subjects there must be at least 2 or more heirs,
devisees of legatees instituted.
3. There is a vacant portion meaning, one of the heirs, This illustrates the order of preference (ISRAI)
devises, legatees instituted cannot succeed.
4. Acceptance of the portion accruing by the person entitled. (If ARTICLE 1023. Accretion shall also take place among devisees,
there is no acceptance the share will go by way of intestacy.) legatees and usufructuaries under the same conditions established
for heirs. (987a)
There is unity of object when two or more persons are
called to the same inheritance. The property is not divided and SECTION 2
the heirs, devisees or legatees are called to the entire estate pro Capacity to Succeed by Will or by Intestacy
indiviso
If there is already a specification ( north portion, south ARTICLE 1024. Persons not incapacitated by law may succeed
portion), accretion is not proper by will or ab intestato.
With respect to money or fungible goods, as long as the The provisions relating to incapacity by will are equally
share of devisee, legatee or heir is not earmarked, there is still applicable to intestate succession. (744, 914)
unity of object
CAPACITY TO SUCCEED is the ability to inherit and
ARTICLE 1016. In order that the right of accretion may take place retain property obtained mortis causa
in a testamentary succession, it shall be necessary: Capacity to succeed is governed by the law of the nation
(1) That two or more persons be called to the same inheritance, or to of the decedent
the same portion thereof, pro indiviso; and
(2) That one of the persons thus called die before the testator, or Bar Question: What matters are governed by the national
renounce the inheritance, or be incapacitated to receive it. (982a) law of the decedent?
Under Article 15:
ARTICLE 1017. The words "one-half for each" or "in equal shares" 1. The order of succession
or any others which, though designating an aliquot part, do not identify 2. The amount of successional right
it by such description as shall make each heir the exclusive owner of 3. The intrinsic validity of the testamentary provision
determinate property, shall not exclude the right of accretion. 4. The capacity to succeed.
In case of money or fungible goods, if the share of each heir is
not earmarked, there shall be a right of accretion. (983a) ARTICLE 1025. In order to be capacitated to inherit, the heir,
devisee or legatee must be living at the moment the succession
In testamentary succession, accretion is proper if the vacancy opens, except in case of representation, when it is proper.
is caused if one of the heirs: A child already conceived at the time of the death of the
1. Predeceased decedent is capable of succeeding provided it be born later under
2. Incapacitated; the conditions prescribed in article 41. (n)
3. Repudiates the inheritance
4. If the suspensive condition is not fulfilled Natural persons must be living AT THE TIME that the
5. Failure to identify one particular heir succession opens or AT THE TIME OF THE DEATH
But the word living includes those at least conceived
ARTICLE 1018. In legal succession the share of the person who (Article 41). A conceived child is deemed to have live from the
repudiates the inheritance shall always accrue to his co-heirs. (981) moment of the complete separation from mothers womb.
But if the child has an intra-uterine life LESS THAN 7
This treats of accretion in intestacy MONTHS, he should be considered alive if the child does not die
One who renounces cannot represented WITHIN 24 HOURS.
In representation, the representative must also be living or
at least conceived at the moment the succession opens
ARTICLE 1019. The heirs to whom the portion goes by the right of
accretion take it in the same proportion that they inherit. (n)
ARTICLE 1026. A testamentary disposition may be made to the
State, provinces, municipal corporations, private corporations,
In intestate succession, accretion is proper if the vacancy is
organizations, or associations for religious, scientific, cultural,
caused by repudiation or incapacity (subject to the right of
educational, or charitable purposes.
representation)
All other corporations or entities may succeed under a will,
There is no accretion in intestate succession if the vacancy is
unless there is a provision to the contrary in their charter or the laws
caused by disinheritance
of their creation, and always subject to the same. (746a)
41
Juridical persons inherit only by WILL Article 1027 provides for a conclusive presumption. Being
Under article 1026, some of these entities are not juridical conclusive, you cannot present controverting evidence
persons. Juridical personality is acquired when it is registered.
Article 1026 grants capacity to succeed even to non-juridical ARTICLE 1028. The prohibitions mentioned in article 739,
persons concerning donations inter vivos shall apply to testamentary
The STATE inherits by will or by intestacy by virtue of its provisions. (n)
caduciary right
This is incapacity by reason of public morality
Applying the law on succession, the following donations

ARTICLE 1027. The following are incapable of succeeding: shall be void:
(1) The priest who heard the confession of the testator during his last 1. When the testator and the recipient are guilty of
illness, or the minister of the gospel who extended spiritual aid to adultery or concubinage
him during the same period; 2. When the testator and the recipient are guilty of
(2) The relatives of such priest or minister of the gospel within the the same criminal offense in consideration thereof
fourth degree, the church, order, chapter, community, 3. Those made by the testator to a public officer,
organization, or institution to which such priest or minister may or his wife, descendant and ascendant by reason of his office
belong;
(3) A guardian with respect to testamentary dispositions given by a ARTICLE 1029. Should the testator dispose of the whole or part
ward in his favor before the final accounts of the guardianship of his property for prayers and pious works for the benefit of his
have been approved, even if the testator should die after the soul, in general terms and without specifying its application, the
approval thereof; nevertheless, any provision made by the ward in executor, with the court's approval shall deliver one-half thereof or
favor of the guardian when the latter is his ascendant, its proceeds to the church or denomination to which the testator
descendant, brother, sister, or spouse, shall be valid; may belong, to be used for such prayers and pious works, and the
(4) Any attesting witness to the execution of a will, the spouse, other half to the State, for the purposes mentioned in article 1013.
parents, or children, or any one claiming under such witness, (747a)
spouse, parents, or children;
(5) Any physician, surgeon, nurse, health officer or druggist who took
Article 1029 is commonly called the Institution of the
care of the testator during his last illness; a
Soul. The soul is considered as an entity which does not have
(6) Individuals, associations and corporations not permitted by law to
a juridical personality but may otherwise inherit
inherit. (745, 752, 753, 754a)
Requisites for the institution of the soul:
1. Priest or Minister 1. The disposition must be for prayers and pious works
to safeguard the right of the heirs who may be defrauded by 2. The prayers and pious works must for the benefit of the
the sinister and undue influence which may be exercised by testators soul
some priest and minister over a dying man 3. The disposition must be in general term
The will must be made DURING THE LAST ILLNESS of the 4. It does not specify the application
testator 5. No particular person is charged with the duty of giving the
LAST ILLNESS means the illness of which the testator dies or money or property
the illness which immediately preceded the death of the 6. No place is specified or date is fixed for the prayers
testator
The will must be made AFTER the confession
ARTICLE 1030. Testamentary provisions in favor of the poor in
The priest must hear the confession. If he merely extends
general, without designation of particular persons or of any
spiritual aid, that is not considered as confession. BUT with
community, shall be deemed limited to the poor living in the domicile
respect to the minister, the giving of spiritual aid disqualifies
of the testator at the time of his death, unless it should clearly
the minister.
appear that his intention was otherwise.
It does not matter whether the illness is long, lingering or
The designation of the persons who are to be considered as
short as long as there is great possibility of death poor and the distribution of the property shall be made by the
The disqualification under this paragraph does not extend to
person appointed by the testator for the purpose; in default of such
the legitime, intestacy and dispositions which do not extend person, by the executor, and should there be no executor, by the
to a testamentary benefit justice of the peace, the mayor, and the municipal treasurer, who
2. Relatives of such pries or minister within the 4th degree, shall decide by a majority of votes all questions that may arise. In all
the church, organization, etc. these cases, the approval of the Court of First Instance shall be
3. Guardians necessary.
This refers to both to guardians over the property and The preceding paragraph shall apply when the testator has
guardians of the person disposed of his property in favor of the poor of a definite locality.
As long as the final account has not been approved, the (749a)
guardian is prohibited from being an heir, legatee/devisee of
the testator
This is disposition in favor of the poor
What is important is that at the time of the making of the
This refers only to the poor living in the domicile of the
will, the final accounts have not been approved. It does not
testator at the time of his death, unless the testator has
matter that he is no longer the guardian at the time of death.
provided otherwise
The prohibition only applies when the institution is during the
The institution is for the poor in general.
subsistence of the guardianship prior to the approval of the
final account When the testator says a poor of a definite locality, then
Unlike the priest, the relatives (spouse, ascendant, the poor in that place.
descendant, brother or sister) are not disqualified, For the Insane persons have no testamentary capacity
priest up to the 4th degree they are disqualified. But with respect to being heirs, insane persons are
4. Attesting witnesses capacitated
If you give a legacy or devise only, the legacy or devise is Incapacity should be construed strictly
void but the witness is still qualified
But applying Article 823, if there are 3 other witnesses who Who will designate the persons who are considered poor?
are competent, then the witness to whom the legacy or 1. The person designated by the testator;
devise is given is capacitated to inherit 2. The executor;
5. Physicians, surgeons, etc 3. Three people by majority vote
The will must be made DURING the LAST ILLNESS and
AFTER THE CARE had commenced
The disqualification does not apply if the physician or nurse is Kinds of Incapacity
a compulsory heir 1. ABSOLUTE INCAPACITY You cannot inherit from
6. Individuals, associations and corporations not anybody under any circumstance.
permitted by law to inherit 2. RELATIVE INCAPACITY You can inherit only from certain
persons or can only inherit certain properties under certain
Article 1027 still applies even if it is proved that there was no circumstances.
undue influence on the part of the priest, guardian, or physician
42
Classes under Absolute Incapacity been granted, the decree shall be set aside so the spouse
1. Article 1026 last paragraph : All other corporations or entities will now be reinstated to succeed to capacity.
may succeed under a will, unless there is a provision to the 8th Paragraph: Any person who falsifies or forges a supposed will of
contrary in their charter or the laws of their creation, and always the decedent.
subject to the same. Article 1032 applies to both testate or intestate succession
2. Article 1027 paragraph 6 : Individuals, associations and When it is the compulsory heir who becomes unworthy,
corporations not permitted by law to inherit. the compulsory heir loses the legitime and all other rights
3. Those who lacks juridical personality pertaining to the legitime and as well to the free portion.
But the incapacitated heir can be represented.
Classes under Relative Incapacity
1. Article 1027: Incapacity by reason of possible undue ARTICLE 1033. The causes of unworthiness shall be without
influence effect if the testator had knowledge thereof at the time he made the
2. Article 1027 paragraphs 1-5: Incapacity by reason of public will, or if, having known of them subsequently, he should condone
policy them in writing. (757a)
3. Article 1028 Incapacity by reason of public policy and
morality This article talks about PARDON OR CONDONATION
4. Article 1032: Incapacity by reason of unworthiness.
Condonation / Pardon Reconciliation
ARTICLE 1031. A testamentary provision in favor of a disqualified It is the unilateral of the It is a bilateral act. There must
person, even though made under the guise of an onerous contract, or testator. be forgiveness and the heir must
made through an intermediary, shall be void. (755) accept.
This article applies only to incapacity by reason of possible Rules for Condonation:
influence and Incapacity by reason of public morality. With If the testator already knew the cause of the unworthiness
respect to incapacity by reason of unworthiness, Article 1031 will at the time of making the will but still he provides
not apply something for that unworthy heir in the will, there is now
an IMPLIED CONDONATION.
ARTICLE 1032. The following are incapable of succeeding by The will in which the implied condonation is made must be
reason of unworthiness: valid and it must not be revoked in order that there is
(1) Parents who have abandoned their children or induced their implied condonation because implied condonation is
daughters to lead a corrupt or immoral life, or attempted against dependent on the will.
their virtue; If knowledge comes only AFTER the execution of the will,
(2) Any person who has been convicted of an attempt against the life condonation must be in writing. This is EXPRESS
of the testator, his or her spouse, descendants, or ascendants; CONDONATION
(3) Any person who has accused the testator of a crime for which the If the cause for unworthiness is also a ground for
law prescribes imprisonment for six years or more, if the disinheritance, the rule on disinheritance applies. Thus,
accusation has been found groundless; reconciliation is enough. There is no requirement that the
(4) Any heir of full age who, having knowledge of the violent death of testator should condone it in writing. But if there is no
the testator, should fail to report it to an officer of the law within a disinheritance and there is only act of unworthiness, if the
month, unless the authorities have already taken action; this testator knew of the act only after the execution of the
prohibition shall not apply to cases wherein, according to law, will, there has to be condonation in writing.
there is no obligation to make an accusation; The only instance wherein an incapacitated heir is restored
(5) Any person convicted of adultery or concubinage with the spouse to capacity by the mere act of reconciliation is when there
of the testator; is a decree of legal separation the guilty spouse becomes
(6) Any person who by fraud, violence, intimidation, or undue incapacitated. But when there is subsequent reconciliation
influence should cause the testator to make a will or to change the decree shall be set aside and the spouse will now be
one already made; restored to capacity.
(7) Any person who by the same means prevents another from
making a will, or from revoking one already made, or who ARTICLE 1034. In order to judge the capacity of the heir,
supplants, conceals, or alters the latter's will; devisee or legatee, his qualification at the time of the death of the
(8) Any person who falsifies or forges a supposed will of the decedent shall be the criterion.
decedent. (756, 673, 674a) In cases falling under Nos. 2, 3, or 5 of article 1032, it shall be
necessary to wait until final judgment is rendered, and in the case
2nd paragraph: Any person who has been convicted of an attempt falling under No. 4, the expiration of the month allowed for the
against the life of the testator, his or her spouse, descendants, or report.
ascendants If the institution, devise or legacy should be conditional, the
The incapacity must be measured AT THE TIME of death of time of the compliance with the condition shall also be considered.
the testator (758a)
Such person is not incapacitated if the attempt against the
wife of the testator was made after the death of the testator In case of a suspensive conditional institution, the heir
4th paragraph: Any heir of full age who, having knowledge of the must be capacitated BOTH:
violent death of the testator, should fail to report it to an officer of the 1. At the time of the testators death
law within a month, unless the authorities have already taken action; 2. At the time the condition is fulfilled
this prohibition shall not apply to cases wherein, according to law,
there is no obligation to make an accusation ARTICLE 1035. If the person excluded from the inheritance by
18 years old is the legal age but 21 is the full age reason of incapacity should be a child or descendant of the decedent
Death must be violent. It must be caused by a crime and should have children or descendants, the latter shall acquire his
Under the last sentence, paragraph 4 applies only when right to the legitime.
there is an obligation to make an accusation but there is no The person so excluded shall not enjoy the usufruct and
law in the Philippines which obliges anyone to make an administration of the property thus inherited by his children. (761a)
accusation because in criminal cases, it is People of the
Philippines versus the criminal. It is the State which
In disinheritance, if a person is disinherited he can still be
prosecutes. As of the present, paragraph 4 has no
represented.
application.
But the disinherited parent shall have no usufruct and
5th paragraph: Any persons convicted or adultery or concubinage with
administration of the property received by the representative
the spouse of the testator
(Article 923).
The person convicted is the one incapacitated, he is the
This same rule applies to incapacity. The incapacitated heir
unworthy. The spouse of the testator is not incapacitated or
can still be represented but the incapacitated heir has no right
unworthy. But the infidelity of the spouse constitutes a
of usufruct or administration over the property received by the
ground for disinheritance. If there is a decree of legal
representative.
separation, by law, the spouse who is guilty is disqualified
from inheriting.
If there is now reconciliation between the guilty spouse and ARTICLE 1036. Alienations of hereditary property, and acts of
the innocent spouse after the decree of legal separation has administration performed by the excluded heir, before the judicial
43
order of exclusion, are valid as to the third persons who acted in good Repudiation of hereditary rights partakes the nature of
faith; but the co-heirs shall have a right to recover damages from the donations
disqualified heir. (n) Acceptance of inheritance does not make the heir
personally liable for the debts and obligations of the decedent
The unworthiness must be declared by the court Acceptance and Repudiation must be absolute, thus, not
subject to condition
ARTICLE 1037. The unworthy heir who is excluded from the
succession has a right to demand indemnity for any expenses incurred ARTICLE 1043. No person may accept or repudiate an
in the preservation of the hereditary property, and to enforce such inheritance unless he is certain of the death of the person from
credits as he may have against the estate. (n) whom he is to inherit, and of his right to the inheritance. (991)
Requisites:
ARTICLE 1038. Any person incapable of succession, who,
1. The heir must be certain of the death (actual or
disregarding the prohibition stated in the preceding articles, entered
presumed) of the decedent
into the possession of the hereditary property, shall be obliged to
2. The heir must be certain of his rights to the
return it together with its accessions.
inheritance
He shall be liable for all the fruits and rents he may have received,
3. The heir must have free disposal of his property
or could have received through the exercise of due diligence. (760a)
ARTICLE 1044. Any person having the free disposal of his

Articles 1037 and 1038 speak of the rights and obligations of
property may accept or repudiate an inheritance.
the excluded unworthy heir
Any inheritance left to minors or incapacitated persons may be
accepted by their parents or guardians. Parents or guardians may
ARTICLE 1039. Capacity to succeed is governed by the law of the repudiate the inheritance left to their wards only by judicial
nation of the decedent. (n) authorization.
The right to accept an inheritance left to the poor shall belong
ARTICLE 1040. The action for a declaration of incapacity and for to the persons designated by the testator to determine the
the recovery of the inheritance, devise or legacy shall be brought within beneficiaries and distribute the property, or in their default, to those
five years from the time the disqualified person took possession mentioned in article 1030. (992a)
thereof. It may be brought by any one who may have an interest in the
succession. (762a) HEIRS WHO MAY WHO MAY
ACCEPT REPUDIATE
The action for declaration of incapacity and recovery of the MINORS Minors can be The repudiation by
inheritance shall be brought WITHIN 5 YEARS from the time the represented by the
DISQUALIFIED heir took possession of the property their parents or parents/guardians
Only those who have an interest who will either stand to gain guardians (Minor must be with judicial
or lose by the exclusion of the incapacitated heir can bring the himself cannot approval for it to be
action accept) valid.
POOR Acceptance must
SECTION 3 be made by the
Acceptance and Repudiation of the Inheritance person designated
by the testator or
ARTICLE 1041. The acceptance or repudiation of the inheritance is in his default,
an act which is purely voluntary and free. (988) follow the order
made in Article
Acceptance and repudiation must be a free and voluntary act 1030. (Justice of
The presence of vitiated consent gives rise to their the Peace, Mayor,
revocability Municipal
There can be partial acceptance and partial repudiation Treasurer)
Even the legitime may be repudiated since no one can be CORPORATIONS/ May be made by The lawful
compelled to accept the generosity of another ASSOCIATIONS/ the lawful representative may
ENTITIES representative. repudiate with court
ARTICLE 1042. The effects of the acceptance or repudiation shall approval.
always retroact to the moment of the death of the decedent. (989) PUBLIC OFFICIAL/ Must be with the With the approval of
ESTABLISHMENTS approval of the the government
Acceptance is the act by which a person called to succeed government
to the inheritance of a decedent either by will or by law manifests MARRIED WOMAN May accept on her May repudiate on her
his assent to the receipt of the property, rights and obligations own without the own without the
which are transmitted to him thru the death of the decedent consent of her consent of her
Repudiation is the act by which the person called to husband husband.
succeed to the inheritance manifest his unwillingness to succeed DEAF-MUTE May accept May repudiate
to the same Who can read and personally or thru personally or thru an
Rights may be waived provided that the waiver is not write an agent agent.
contrary to law, morals, public policy, good customs or prejudicial DEAF-MUTE Must be made by Must be made by the
to the right of the person recognized by law. This is applicable in who cannot read or the guardian guardian with court
acceptance and repudiation. write (because deaf approval
No person can be forced to accept the generosity of another mute who cannot
Repudiation and acceptance are subsequent to the death of read and write has
the decedent. But their effects retroact from the moment of no juridical
death. capacity)
If you accept or repudiate before the death of the decedent,
it is void because it involves future inheritance. Moreover, a will is ARTICLE 1045. The lawful representatives of corporations,
essentially revocable so, the acceptance or repudiation is associations, institutions and entities qualified to acquire property
premature may accept any inheritance left to the latter, but in order to
repudiate it, the approval of the court shall be necessary. (993a)
GENERAL RULE: Acceptance and repudiation once made are
irrevocable ARTICLE 1046. Public official establishments can neither accept
EXCEPTION: When it was made through any of the causes that vitiate nor repudiate an inheritance without the approval of the
consent or when an unknown will appears. government. (994)
Acceptance may be EXPRESS, TACIT or PRESUMED

ARTICLE 1047. A married woman of age may repudiate an
Repudiation being an act of disposition, it requires greater
inheritance without the consent of her husband. (995a)
capacity and more formalities than acceptance
44
ARTICLE 1048. Deaf-mutes who can read and write may accept or If all the heirs accept, there is co-ownership
repudiate the inheritance personally or through an agent. Should they If one of them repudiates, there is accretion or
not be able to read and write, the inheritance shall be accepted by their substitution if there is a substitute
guardians. These guardians may repudiate the same with judicial
approval. (996a) ARTICLE 1055. If a person, who is called to the same
inheritance as an heir by will and ab intestato, repudiates the
ARTICLE 1049. Acceptance may be express or tacit. inheritance in his capacity as a testamentary heir, he is understood
An express acceptance must be made in a public or private to have repudiated it in both capacities.
document. Should he repudiate it as an intestate heir, without knowledge
A tacit acceptance is one resulting from acts by which the of his being a testamentary heir, he may still accept it in the latter
intention to accept is necessarily implied, or which one would have no capacity. (1009)
right to do except in the capacity of an heir.
Acts of mere preservation or provisional administration do not An heir is both a testamentary heir and an intestate heir
imply an acceptance of the inheritance if, through such acts, the title or If you renounced your share in testamentary succession, it
capacity of an heir has not been assumed. (999a) follows that you also renounced your share in legal succession
If at the time of your being legal or intestate heir, you
The acts of mere preservation or administration do not already knew that you are instituted as testamentary heir, you
constitute acceptance because these acts are not acts of dominion are deemed to have repudiated both. But if at the time that you
are renouncing your being an intestate or legal heir, you do not
ARTICLE 1050. An inheritance is deemed accepted: know that you are also instituted heir in a will, then you are not
(1) If the heirs sells, donates, or assigns his right to a stranger, or deemed to have renounced your institution in the will because
to his co-heirs, or to any of them; the presumption is that the shares of the heir in legal
(2) If the heir renounces the same, even though gratuitously, for succession is just based on the presumed will of the testator.
the benefit of one or more of his co-heirs;
(3) If he renounces it for a price in favor of all his co-heirs ARTICLE 1056. The acceptance or repudiation of an inheritance,
indiscriminately; but if this renunciation should be gratuitous, once made, is irrevocable, and cannot be impugned, except when it
and the co-heirs in whose favor it is made are those upon was made through any of the causes that vitiate consent, or when
whom the portion renounced should devolve by virtue of an unknown will appears. (997)
accretion, the inheritance shall not be deemed as accepted.
(1000) ARTICLE 1057. Within thirty days after the court has issued an
order for the distribution of the estate in accordance with the Rules
Article 1050 enumerates the instances wherein there is of Court, the heirs, devisees and legatees shall signify to the court
tacit acceptance having jurisdiction whether they accept or repudiate the inheritance.
Under the 2nd paragraph, take note that the renunciation If they do not do so within that time, they are deemed to have
must be in favor of one or some but not all. When you renounce accepted the inheritance. (n)
in favor of one or some, you are actually choosing who will
receive. You are exercising dominion over your share and it is an Within 30 days, you must signify your acceptance or
act of ownership. Thus, there is tacit acceptance repudiation. Otherwise, the presumption is you have accepted
Under the 3rd paragraph, if you renounce in favor of your co- the inheritance
heirs of ALL indiscriminately but you were paid, then there is tacit Article 1057 refers to presumed acceptance
acceptance because why would they pay you if you do not own Article 1050 refers to tacit acceptance
the share you are giving to them. BUT the portion renounced
should not devolve to the other heirs who would succeed by virtue SECTION 4
of accretion if the renunciation is gratuitous. Executors and Administrators
ARTICLE 1051. The repudiation of an inheritance shall be made in ARTICLE 1058. All matters relating to the appointment, powers
a public or authentic instrument, or by petition presented to the court and duties of executors and administrators and concerning the
having jurisdiction over the testamentary or intestate proceedings. administration of estates of deceased persons shall be governed by
(1008) the Rules of Court. (n)
How do you repudiate? ARTICLE 1059. If the assets of the estate of a decedent which
1. Repudiation by public document can be applied to the payment of debts are not sufficient for that
2. When repudiation is embodied in an authentic document purpose, the provisions of articles 2239 to 2251 on Preference of
3. By petition presented in court having jurisdiction over the Credits shall be observed, provided that the expenses referred to in
testamentary or intestate proceeding article 2244, No. 8, shall be those involved in the administration of
the decedent's estate. (n)
ARTICLE 1052. If the heir repudiates the inheritance to the
prejudice of his own creditors, the latter may petition the court to ARTICLE 1060. A corporation or association authorized to
authorize them to accept it in the name of the heir. conduct the business of a trust company in the Philippines may be
The acceptance shall benefit the creditors only to an extent appointed as an executor, administrator, guardian of an estate, or
sufficient to cover the amount of their credits. The excess, should there trustee, in like manner as an individual; but it shall not be appointed
be any, shall in no case pertain to the renouncer, but shall be guardian of the person of a ward. (n)
adjudicated to the persons to whom, in accordance with the rules
established in this Code, it may belong. (1001)
SECTION 5
Collation
The creditors can accept in behalf of the heirs only if the heir
repudiates and the repudiation prejudices the creditors
ARTICLE 1061. Every compulsory heir, who succeeds with other
But in that case, creditors cannot accept the entire
compulsory heirs, must bring into the mass of the estate any
inheritance, devise /legacy. Only the amount sufficient to cover
property or right which he may have received from the decedent,
the credit.
during the lifetime of the latter, by way of donation, or any other
gratuitous title, in order that it may be computed in the
ARTICLE 1053. If the heir should die without having accepted or determination of the legitime of each heir, and in the account of the
repudiated the inheritance his right shall be transmitted to his heirs. partition. (1035a)
(1006)
COLLATION means computing or adding certain values
The death of the heir should be after that of the decedent in to the estate, and charging the same to the LEGITIME
order that Article 1053 may be applied COLLATION also means computing or adding certain
values to the estate, and charging the same to the FREE
ARTICLE 1054. Should there be several heirs called to the PORTION
inheritance, some of them may accept and the others may repudiate it.
(1007a) ARTICLE 1062. Collation shall not take place among compulsory
heirs if the donor should have so expressly provided, or if the donee
45
should repudiate the inheritance, unless the donation should be

reduced as inofficious. (1036)
ARTICLE 1063. Property left by will is not deemed subject to

collation, if the testator has not otherwise provided, but the legitime ARTICLE 1068. Expenses incurred by the parents in giving their
shall in any case remain unimpaired. (1037) children a professional, vocational or other career shall not be
brought to collation unless the parents so provide, or unless they
impair the legitime; but when their collation is required, the sum
ARTICLE 1064. When grandchildren, who survive with their uncles, which the child would have spent if he had lived in the house and
aunts, or cousins, inherit from their grandparents in representation of company of his parents shall be deducted therefrom. (1042a)
their father or mother, they shall bring to collation all that their
parents, if alive, would have been obliged to bring, even though such
When you give your child elementary or high school
grandchildren have not inherited the property.
education , this is not generosity but a Moral Obligation on you
They shall also bring to collation all that they may have received
part
from the decedent during his lifetime, unless the testator has provided
otherwise, in which case his wishes must be respected, if the legitime
of the co-heirs is not prejudiced. (1038) ARTICLE 1069. Any sums paid by a parent in satisfaction of the
debts of his children, election expenses, fines, and similar expenses
shall be brought to collation. (1043a)
Items which are not subject to collation:
1. If the testator provides that the donation shall not be ARTICLE 1071. The same things donated are not to be brought
collated, but subject to the rule that it should not impair the to collation and partition, but only their value at the time of the
legitime of the other compulsory heirs donation, even though their just value may not then have been
2. If the compulsory heir repudiated his share in the assessed.
inheritance. The donation will not be revoked but if it is Their subsequent increase or deterioration and even their total
inofficious, the heir who repudiated the inheritance will pay loss or destruction, be it accidental or culpable, shall be for the
or give back the value to the other compulsory heirs whose benefit or account and risk of the donee. (1045a)
legitimes are impaired.
3. Those given to voluntary heirs, legatees and devisees. The Only the value at the time of the perfection of the
donations given to them will be charged to the free portion. donation should be collated
If it will impair the legitime of the other compulsory heirs, it
has to be reduced. (Article 1063) ARTICLE 1072. In the collation of a donation made by both
4. Expenses incurred by the parents in giving their children the parents, one-half shall be brought to the inheritance of the father,
professional, vocational or other career (Article 1068) and the other half, to that of the mother. That given by one alone
5. Wedding gifts (Article 1070) shall be brought to collation in his or her inheritance. (1046a)
GENERAL RULE: Expenses incurred by the parents in giving their

ARTICLE 1073. The donee's share of the estate shall be reduced
children the professional, vocational or other career is not charged to
by an amount equal to that already received by him; and his co-heirs
the legitime of the compulsory heirs but only to the free portion
shall receive an equivalent, as much as possible, in property of the
EXCEPTION: If the parents expressly provide that it shall be charged to
same nature, class and quality. (1047)
the legitime
ARTICLE 1070. Wedding gifts by parents and ascendants ARTICLE 1074. Should the provisions of the preceding article be
consisting of jewelry, clothing, and outfit, shall not be reduced as impracticable, if the property donated was immovable, the co-heirs
inofficious except insofar as they may exceed one-tenth of the sum shall be entitled to receive its equivalent in cash or securities, at the
which is disposable by will. (1044) rate of quotation; and should there be neither cash nor marketable
securities in the estate, so much of the other property as may be
necessary shall be sold at public auction.
These items are charged to the free portion but subject to
If the property donated was movable, the co-heirs shall only
the limitation that they should not exceed 1/10 of the free portion
have a right to select an equivalent of other personal property of the
inheritance at its just price. (1048)
ARTICLE 1065. Parents are not obliged to bring to collation in the
inheritance of their ascendants any property which may have been
Article 1073 and article 1074 are the RULES OF
donated by the latter to their children. (1039)
EQUALIZATION IN COLLATION
ARTICLE 1066. Neither shall donations to the spouse of the child Rules for immovables:
be brought to collation; but if they have been given by the parent to 1. Property of the same nature, class and quality
the spouses jointly, the child shall be obliged to bring to collation one- 2. If no property of the same nature, cash or security
half of the thing donated. (1040) 3. Other property as may be necessary shall be sold at public
auction
ARTICLE 1067. Expenses for support, education, medical
attendance, even in extraordinary illness, apprenticeship, ordinary Rules for movables:
equipment, or customary gifts are not subject to collation. (1041) 1. Property of the same nature, class or quality
2. If none, the equivalent value of the property
SUPPORT includes education but Article 1067 separates
support and education When the property donated is a MOVABLE property, there
Education under this article means only up to HIGH SCHOOL is NO RIGHT to sell at a public auction
education because there is separate provision under Article 1068
as to professional, vocational and other careers ARTICLE 1075. The fruits and interest of the property subject to
collation shall not pertain to the estate except from the day on which
Items which are not collated to the legitime and to the free the succession is opened.
portion because they are not included in the computation in For the purpose of ascertaining their amount, the fruits and
the net hereditary estate: interest of the property of the estate of the same kind and quality as
1. Properties received from the testator by the children of the that subject to collation shall be made the standard of assessment.
heir (Article 1065) (1049)
2. Donations by the testator to the spouse of the compulsory
heir (Article 1066) If the donation was made to the In donation, there is immediate transfer of ownership.
spouses jointly, is subject to collation pertaining to the Thus, the fruits and interest from the time of the donation up to
share of the heir the death of the testator shall belong to the donee
3. Expenses for support, education, medical attendance The fruits from the time of the death of the testator shall
pertain to the estate
ARTICLE 1076. The co-heirs are bound to reimburse to the

donee the necessary expenses which he has incurred for the
46
preservation of the property donated to him, though they may not have 1. There are no debts;
augmented its value. 2. That everyone is of legal age or represented by guardian.
The donee who collates in kind an immovable, which has been
given to him, must be reimbursed by his co-heirs for the improvements ARTICLE 1081. A person may, by an act inter vivos or mortis
which have increased the value of the property, and which exist at the causa, intrust the mere power to make the partition after his death
time the partition is effected. to any person who is not one of the co-heirs. i
As to works made on the estate for the mere pleasure of the The provisions of this and of the preceding article shall be
donee, no reimbursement is due him for them; he has, however, the observed even should there be among the co-heirs a minor or a
right to remove them, if he can do so without injuring the estate. (n) person subject to guardianship; but the mandatory, in such case,
shall make an inventory of the property of the estate, after notifying
This article talks the RULES FOR RETURNING IN KIND the co-heirs, the creditors, and the legatees or devisees. (1057a)
When there is collation in kind (return of the property or
the value), the other heirs should reimburse the donee for the This is what you call the appointment of the
necessary expenses MANDATARY
You have to reimburse the heir of the value of the MANDATARY is a person entrusted to make the partition
improvements The heirs are not bound by the partition made by the
The donee has the right to remove the improvements which mandatory. The heirs may accept or they may reject.
are for his own pleasure if the removal will not impair the property In case of conflict, the court may settle the conflict
donated
Requirements in order that there is valid partition by the
ARTICLE 1077. Should any question arise among the co-heirs upon mandatary:
the obligation to bring to collation or as to the things which are subject 1. The mandatary should not be a co-heir because if he is
to collation, the distribution of the estate shall not be interrupted for one of the co-heirs his partition may be tainted with
this reason, provided adequate security is given. (1050) impartiality.
2. In case one of the heirs is subject to guardianship, it is
Questions on collation do not interrupt distribution as long required that there be notifications to the co-heirs,
as adequate security is given creditors, legatees or devisees
Only properties received by gratuitous title may be the 3. There has to be inventory of the estate
subject of collation
When the estate proceedings have not yet reached the stage ARTICLE 1082. Every act which is intended to put an end to
of partitioning and distributing the property, any question of indivision among co-heirs and legatees or devisees is deemed to be
collation that is brought up can be regarded as having been a partition, although it should purport to be a sale, an exchange, a
prematurely raised compromise, or any other transaction. (n)
SECTION 6 There is no specific time as to when partition is to be

Partition and Distribution of the Estate effected as long as it is intended to put an end to indivision or
SUBSECTION 1 to end the co-ownership
Partition
ARTICLE 1083. Every co-heir has a right to demand the division
ARTICLE 1078. Where there are two or more heirs, the whole of the estate unless the testator should have expressly forbidden its
estate of the decedent is, before its partition, owned in common by partition, in which case the period of indivision shall not exceed
such heirs, subject to the payment of debts of the deceased. (n) twenty years as provided in article 494. This power of the testator to
prohibit division applies to the legitime.
ARTICLE 1079. Partition, in general, is the separation, division Even though forbidden by the testator, the co-ownership
and assignment of a thing held in common among those to whom it terminates when any of the causes for which partnership is dissolved
may belong. The thing itself may be divided, or its value. (n) takes place, or when the court finds for compelling reasons that
division should be ordered, upon petition of one of the co-heirs.
(1051a)
Article 1079 defines PARTITION
Before partition, there is co-heirship. This co-heirship is
dissolved by partition. GENERAL RULE: Heirs, whether compulsory or voluntary, can
demand partition
How partition is made? EXCEPTION: When the testator has forbidden the partition of the
1. JUDICIAL PARTITION estate. But this prohibition shall not exceed 20 years.
2. EXTRA-JUDICIAL PARTITION
Instances when the heirs may partition even if before 20
years:
ARTICLE 1080. Should a person make a partition of his estate by
1. When any of the causes for the termination of
an act inter vivos, or by will, such partition shall be respected, insofar
the partnership (e.g. death)
as it does not prejudice the legitime of the compulsory heirs.
2. If the heirs themselves mutually agree to
A parent who, in the interest of his or her family, desires to keep
partition
any agricultural, industrial, or manufacturing enterprise intact, may
3. Upon order of the court for compelling reasons
avail himself of the right granted him in this article, by ordering that
and upon petition of the heirs
the legitime of the other children to whom the property is not assigned,
be paid in cash. (1056a)
ARTICLE 1084. Voluntary heirs upon whom some condition has
been imposed cannot demand a partition until the condition has
This is refers to Extra-judicial Partition by the Decedent
been fulfilled; but the other co-heirs may demand it by giving
This is subject to the limitation that the legitimes of the
sufficient security for the rights which the former may have in case
compulsory heirs should not be impaired
the condition should be complied with; and until it is known that the
condition has not been fulfilled or can never be complied with, the
Kinds of extra-judicial partition by decedent:
partition shall be understood to be provisional. (1054a)
1. By acts inter vivos
There is no requirement or no formalities required.
In partition, there is no transfer of ownership. There is merely a A voluntary heir whose institution is subject to a condition
physical determination of the portion to be given to the heir. cannot demand partition before the fulfillment of the condition.
2. By will The other heirs concurring with such voluntary heir may
Formalities are required. demand partition provided they given security or cash bond to
Kinds of extra-judicial partition by heirs: safeguard the rights of the conditional heirs
1. Orally
This is binding only between the heirs themselves who GENERAL RULE: The right to demand partition does not prescribe
are participants EXCEPTION: When one of the heirs adversely possesses the
2. By public instrument property and he has complied with all the requirements for
This is binding even against the 3rd person. acquisitive prescription
Limitations of extra-judicial partition:

47
ARTICLE 1085. In the partition of the estate, equality shall be ARTICLE 1091. A partition legally made confers upon each heir
observed as far as possible, dividing the property into lots, or assigning the exclusive ownership of the property adjudicated to him. (1068)
to each of the co-heirs things of the same nature, quality and kind.
(1061) ARTICLE 1092. After the partition has been made, the co-heirs
shall be reciprocally bound to warrant the title to, and the quality of,
ARTICLE 1086. Should a thing be indivisible, or would be much each property adjudicated. (1069a)
impaired by its being divided, it may be adjudicated to one of the heirs,
provided he shall pay the others the excess in cash. For warranty against eviction to be
Nevertheless, if any of the heirs should demand that the thing be enforceable, it is enough that there be a burden or
sold at public auction and that strangers be allowed to bid, this must encumbrance that must be respected. It is not necessary that
be done. (1062) the heir be deprived full ownership
Eviction here does not have to be by
Note that if even ONE heir should demand a public auction, final judgment before recourse to the warranty can be sought,
this must be done as long as no heir objects
ARTICLE 1087. In the partition the co-heirs shall reimburse one Effects of partition:
another for the income and fruits which each one of them may have 1. Once there is partition, the heirs will be the exclusive
received from any property of the estate, for any useful and necessary owners of the thing given to them or delivered to them
expenses made upon such property, and for any damage thereto (Article 1091)
through malice or neglect. (1063) 2. There is a reciprocal and proportionate warranty (Article
1092)
Reimbursement made by co-heirs:
1. Income and fruits ARTICLE 1093. The reciprocal obligation of warranty referred to
2. Useful and necessary expenses in the preceding article shall be proportionate to the respective
3. Damages thru malice or neglect hereditary shares of the co-heirs, but if any one of them should be
insolvent, the other co-heirs shall be liable for his part in the same
ARTICLE 1088. Should any of the heirs sell his hereditary rights to proportion, deducting the part corresponding to the one who should
a stranger before the partition, any or all of the co-heirs may be be indemnified.
subrogated to the rights of the purchaser by reimbursing him for the Those who pay for the insolvent heir shall have a right of action
price of the sale, provided they do so within the period of one month against him for reimbursement, should his financial condition
from the time they were notified in writing of the sale by the vendor. improve. (1071)
(1067a)
ARTICLE 1094. An action to enforce the warranty among co-
This article talks about LEGAL REDEMPTION heirs must be brought within ten years from the date the right of
action accrues. (n)
Requisites for the exercise of legal redemption:
1. There are two or more heirs The period of exercise of the warranty
2. There is a sale of hereditary right is 10 years
There must be a sale or other onerous
disposition ARTICLE 1095. If a credit should be assigned as collectible, the
The sale must be voluntary or forced as co-heirs shall not be liable for the subsequent insolvency of the
in the case of sales on execution debtor of the estate, but only for his insolvency at the time the
3. The buyer must be a stranger partition is made.
4. The sale must be made BEFORE partition The warranty of the solvency of the debtor can only be
5. At least one co-heir must demand partition enforced during the five years following the partition.
If all of the of the co-heirs demand Co-heirs do not warrant bad debts, if so known to, and
partition, they shall be allowed to redeem the accepted by, the distributee. But if such debts are not assigned to a
proportionate share pertaining to them co-heir, and should be collected, in whole or in part, the amount
6. The demand must be made within one month from collected shall be distributed proportionately among the heirs.
Notification in Writing (1072a)
7. The redemptioner must reimburse the price of the
sale This is Warranty as to Insolvency
There is a warranty of insolvency
GENERAL RULE: The right of legal redemption is a PERSONAL RIGHT. provided that the debtor was solvent at the time of the
They cannot assign or sell this right. partition, not later
EXCEPTION: If the heir who wants to exercise the right of legal Such warranty is good for 5 years,
redemption dies prior to the exercise, his right may be transmitted to following the date of partition
his own heirs. There is no warranty for bad debts.
An heir accepts them at his own risk
ARTICLE 1089. The titles of acquisition or ownership of each
property shall be delivered to the co-heir to whom said property has
been adjudicated. (1065a)
ARTICLE 1090. When the title comprises two or more pieces of ARTICLE 1096. The obligation of warranty among co-heirs shall
land which have been assigned to two or more co-heirs, or when it cease in the following cases:
covers one piece of land which has been divided between two or more (1) When the testator himself has made the partition, unless it
co-heirs, the title shall be delivered to the one having the largest appears, or it may be reasonably presumed, that his intention
interest, and authentic copies of the title shall be furnished to the other was otherwise, but the legitime shall always remain
co-heirs at the expense of the estate. If the interest of each co-heir unimpaired;
should be the same, the oldest shall have the title. (1066a) (2) When it has been so expressly stipulated in the agreement of
partition, unless there has been bad faith;
Title here refers to the document (3) When the eviction is due to a cause subsequent to the partition,
evidencing the right of ownership and not to the right itself or has been caused by the fault of the distributee of the
property. (1070a)
Order of preference as to whom title shall be delivered if some
properties remain undivided: SUBSECTION 3
1. The one having the largest interest Rescission and Nullity of Partition
2. If all of them have the same interest, the oldest heir
ARTICLE 1097. A partition may be rescinded or annulled for the
SUBSECTION 2 same causes as contracts. (1073a)
Effects of Partition
48
ARTICLE 1098. A partition, judicial or extra-judicial, may also be ARTICLE 1105. A partition which includes a person believed to
rescinded on account of lesion, when any one of the co-heirs received be an heir, but who is not, shall be void only with respect to such
things whose value is less, by at least one-fourth, than the share to person. (1081a)
which he is entitled, considering the value of the things at the time
they were adjudicated. (1074a) This speaks of an intrusion of a
stranger in the partition
ARTICLE 1099. The partition made by the testator cannot be The partition in this case is not
impugned on the ground of lesion, except when the legitime of the completely void.
compulsory heirs is thereby prejudiced, or when it appears or may Only the part corresponding to the
reasonably be presumed, that the intention of the testator was non-heir is void.
otherwise. (1075)
GENERAL RULE: In order that that you may be justified in asking for
rescission on the account of lesion, the deduction must at least be .
If it is less than , you can only ask for a completion.
EXCEPTION: If the partition is made by the TESTATOR, even if the
deduction is less than , you cannot ask for rescission
EXCEPTION TO THE EXCEPTION:
1. When the legitime of the compulsory heirs has been
impaired.
2. If the intent of the testator is for his partition to be rescinded
should there be lesion
ARTICLE 1100. The action for rescission on account of lesion shall

prescribe after four years from the time the partition was made. (1076)
If brought after more than 4 years, the action for

rescission will fail
The 4-year period begins to run not from the time
of the project of partition but from the time there is court
approval
ARTICLE 1101. The heir who is sued shall have the option of
indemnifying the plaintiff for the loss, or consenting to a new partition.
Indemnity may be made by payment in cash or by the delivery of
a thing of the same kind and quality as that awarded to the plaintiff.
If a new partition is made, it shall affect neither those who have
not been prejudiced nor those have not received more than their just
share. (1077a)
The defendant heir, despite a proper ground for

rescission, is given an option:
1. To indemnify the plaintiff This may be made by
payment in cash or
delivery of the thing of the same kind.
2. New partition
ARTICLE 1102. An heir who has alienated the whole or a

considerable part of the real property adjudicated to him cannot
maintain an action for rescission on the ground of lesion, but he shall
have a right to be indemnified in cash. (1078a)
Rescission requires mutual restitution
ARTICLE 1103. The omission of one or more objects or securities

of the inheritance shall not cause the rescission of the partition on the
ground of lesion, but the partition shall be completed by the
distribution of the objects or securities which have been omitted.
(1079a)
ARTICLE 1104. A partition made with preterition of any of the

compulsory heirs shall not be rescinded, unless it be proved that there
was bad faith or fraud on the part of the other persons interested; but
the latter shall be proportionately obliged to pay to the person omitted
the share which belongs to him. (1080)
This involves a preterition of compulsory

heirs, not in the institution, but in the partition of one or more
objection
Preterition of an object in a will gives
rise to mixed succession. Preterition of an object in the partition
does not give rise to rescission.
GENERAL RULE: Such preterition in the partition will NOT cause

rescission.
EXCEPTION: If there was
1. Fraud
2. Bad faith
49
Success is not the key to happiness. Happiness is the

key to success.
If you love what you are doing, you will be successful.
- Albert Schweitzer
50

Succession Reviewer Lectures 4th Year

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Succession Reviewer Lectures 4th Year

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SUCCESSION REVIEWER (4th Year : 2008-2009)

Prepared by: Jazzie M. Sarona

ARTICLE 782. An heir is a person called to the succession

ARTICLE 788. If a testamentary disposition admits of different

ARTICLE 799. To be of sound mind, it is not necessary that the

ARTICLE 814. In case of any insertion, cancellation, erasure or

2 kinds of Codicil: Revocation is an act of the mind terminating the

But decisions of the court pertaining to these

Matters that may be passed upon by the probate court:

PROBATE OF HOLOGRAPHIC PROBATE OF NOTARIAL

GENERAL RULE: The statement of a false cause for the institution of

Potestative Condition in Potestative Condition in

ARTICLE 882. The statement of the object of the institution, or

MODE CONDITION This article talks about an institution subject to either a

In this scenario, the illegitimate children survive with the

ARTICLE 900. If the only survivor is the widow or widower, she

Free Portion P 637,500 1. Surviving spouse with 1 legitimate child =

A child under parental authority cannot execute a will

(END for Succession Review 1 1st Semester)

If the testator knows that he does not own the property

In this case, the testator is the debtor

In the collateral line, the right of representation takes

ARTICLE 1010. The right to inherit ab intestato shall not extend

There can be no accretion insofar as the legitime is

ARTICLE 1022. In testamentary succession, when the right of

Applying the law on succession, the following donations

ARTICLE 1044. Any person having the free disposal of his

Acceptance may be EXPRESS, TACIT or PRESUMED

should repudiate the inheritance, unless the donation should be

ARTICLE 1063. Property left by will is not deemed subject to

GENERAL RULE: Expenses incurred by the parents in giving their

ARTICLE 1076. The co-heirs are bound to reimburse to the

SECTION 6 There is no specific time as to when partition is to be

Limitations of extra-judicial partition:

ARTICLE 1100. The action for rescission on account of lesion shall

If brought after more than 4 years, the action for

The defendant heir, despite a proper ground for

ARTICLE 1102. An heir who has alienated the whole or a

Rescission requires mutual restitution

ARTICLE 1103. The omission of one or more objects or securities

ARTICLE 1104. A partition made with preterition of any of the

This involves a preterition of compulsory

GENERAL RULE: Such preterition in the partition will NOT cause

Success is not the key to happiness. Happiness is the

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