I.

GENERAL PROVISIONS

A. Definition and Concept

Applicable laws, Effectivity

1. Civil Code of the Philippines: August 30, 1950
2. Family Code: August 3, 1988
Prior to the New Civil Code: the Old Civil Code (the Spanish Code of 1889) was in effect

Succession in General
By succession, the transmissible property, rights and obligations of a person pass, upon his
death, to his heirs and other successor’s mortis causa.

The Corpse in Succession

Succession refers only to the inheritance or universality of the property of the deceased
transmitted to his successor’s mortis causa. It has no reference to the corps which cannot be
considered as part of the inheritance, inasmuch as it is not property.

Related Matters
1. Disposition of the corpse (Articles 305 to 310, NCC)
2. Validity of authorization given by a person to the parts of his corps for medical, surgical,
and scientific purposes (RA 349, as amended by RA 1056)
3. Surviving Spouse given priority over the next of kin (i.e. actual order in which relatives are
obliged to support the deceased) as to the duty and right to make funeral arrangements.

 Article 744, NCC: Succession is a mode of acquisition by virtue of which the

property, rights and obligations to the extent of the value of the inheritance, or a person are
transmitted through his death to another or others, either by his will or by operation of law.

Two concepts of succession

1. The transmission of the property, rights and obligations of a person
2. The universality or entirety of the property, rights and obligations transmitted by any of
the forms of succession admitted in law.
First concept more accurate
a. Article 772: succession is a mode of acquiring ownership
b. Etymological meaning of succession: to substitute, to subrogate, or to put one person in
place of another.

Succession defined (Tolentino)

• The mode of acquiring ownership, by virtue of which the inheritance of a person is
transmitted to us, either according to his express will and words, or if by some natural or
accidental circumstances he has made no will, according to his presumed will provided by
law as analogous to what he would made had he executed one.
• A mode of acquisition, by virtue of which one succeeds to the universality of the
transmissible rights, active and passive, of a person who has died.

Succession and inheritance distinguished

Succession refers to the legal mode by Inheritance refers to the objective
which this inheritance is transmitted to element of succession, to the mass or
the persons entitled to it surviving the totality of the patrimony of a deceased
deceased. person.

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

creation.

“Ownership and other real rights over property are acquired and transmitted by law, by
donation, by testate and intestate succession, and in consequence of certain contracts, by
tradition”.

“They may also be acquired by means of prescription.”

Mode and Title distinguished

Mode of acquiring ownership and other Title for acquiring ownership and other

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 real rights is the specific cause which
gives rise to them, as the result of the
presence of a special condition of things,
of the aptitude and intent of persons,
and of compliance with the conditions
established by law.
Mode the proximate cause, of the
acquisition.
real rights is the juridical act which gives
the name to the acquisition of the real
right, but which in itself is insufficient to
produce it.
Title is the remote cause

The civil code is illogical and scientific, neither daring to abandon the theory of title and mode
(the traditional Roman law distinction. In following the Spanish Code), nor adapting itself to
modern trends (German, Swiss and Austrian Codes).

The Different Modes of Acquiring Ownership

1. Occupation
2. intellectual Creation
3. Law
4. Donation
5. Succession (Testate and Intestate)
6. Tradition (in consequence of certain contracts)
7. Prescription

 Article 1311, NCC: “Contracts take effect only between the parties, their assigns
and heirs, except in case where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by provision of law. The heir is not liable
beyond the value of the property he received from the decedent.

“if a contract should contain some stipulation in favor of a third person, he may demand its
fulfillment provided he communicated his acceptance to the obligor before its revocation. A mere
incidental benefit or interest of a person is not sufficient. The contracting parties must have
clearly and deliberately conferred a favor upon a third person.”

Contracts bind heirs

1. As a general rule, rights and obligations under a contract are transmitted to the heirs of
the parties. The heirs are not considered as third parties, because there is privity of
interest between them and their predecessor.
2. Transmissible contracts
a. A lease contract is transmissible to the heirs of the lessee
b. The heirs of a party in whose favor a trust exists, may enforce the trust against the
trustee
c. The heirs of a person bound to reconvey a piece of property may be compelled to
make the reconveyance.
d. Obligations, except money debts, are transmissible to the heirs of the parties, and
they may be compelled to fulfill the same. The heirs of the parties to a contract may
make a valid novation of said contract.
3. Intransmissible contracts
a. Purely personal
i. By provision of law
ii. By the very nature of the obligations arising therefrom (such as those
requiring special personal qualifications of the obligor)
b. Money debts (which merely constitute as a charge against his estate)

Basis of Law of Succession

The law of succession is based partly on the law of family relations, and partly on the law of
property.

Sanchez Roman: “Succession aims to make possible and effective the orderly enjoyment by the
human species of the essential elements of physical life, giving a note of subsistence and
perpetuity of the patrimony which cannot be maintained without the transmissibility of the
property constituting it.”

Law on Family Relations

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

Law of Property
1. Navarro Amandi: “Succession is but a corollary to the right of property; without it, the
right of ownership would be an imperfect thing.”
2. Sanchez Roman: Characteristics of Production of Wealth
a. Individuality: prevent stagnation of wealth
b. Inequality: A product of the independence and freedom of human activities,
through labor and the peculiar qualities of each one
c. Transmissibility: A salient feature of the right of property, which is incomplete
without the right to transmit the same.

The Code Commission followed the prevailing tendency towards a new concept of legal order,
which pursues the socialization of ownership, not in the sense of “socialism” but in the sense
of effectivity adapting property to the needs of society.

In retrospect, the Old Civil Code was drafted when the prevailing philosophy was that of extreme
individualism in the law of property and of succession.

Means employed by the Code to attain the stability of the social order
1. The Purification of the system of private ownership of its abuses (e.g. prohibitions in
donations inter vivos)
2. The Closing of those channels upon which wealth has flowed in torrents from generation
to generation of a particular family (e.g. limited fideicommissary substitutions in Article
863, and the increased free portion when children and descendants survive in Article 888)
3. The Emancipation of innocent persons from bondage of undue conservation which has
denied them the rights to share in the estate of their parents (e.g. illegitimate children)
4. The Elimination of distant relatives who may succeed to property to the accumulation of
which they have not contributed anything (e.g. right to succeed without a will within the
5th degree and no longer the 6th degree)
5. The Staying of the dead hand to prevent it from meddling with the affairs of the living
(e.g. elimination of the substitutions known as pupilar and ejemplar)

Fundamental Changes in the NCC

1. Greater freedom is given to the testator in the choice of the form for his will or testament
(i.e. Execution of holographic will has been permitted without witnesses or attestations)
2. Greater facility in the probate of wills is provided or the introduction of the system of
probate during the lifetime of the testator (i.e. Probate can only be effected after the
death of the testator in the prior legislation) anti mortem probate
3. The surviving spouse is given a better position in the law of succession (e.g. legitime
changed from usufruct to full ownership; higher degree in the order of succession in
intestate succession)
4. In the legitime of legitimate children and descendants (the mejora or betterment) has
been abolished
5. The reservas and reversions (except reserve ironcal, which was reincorporated by
Congress) has been abolished

B. Subjects of Succession

1. Who are the subjects?

Article 775, NCC

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

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 Article 782, NCC
Concept of Heir (General)
Anyone who succeeds to the whole or to a portion or fraction of the inheritance (understood
as the indeterminate mass or totality of the transmissible property, rights, and obligations of
the deceased), whether by virtue of a will or by intestacy.
1. includes all relatives who succeed by virtue of the laws of intestate succession
2. includes all persons, whether relatives or not, who take what might be called the residuary
estate under a will

Kinds of Heirs
1. Compulsory heirs
a. Those who succeed by force of law to some portion of the inheritance, in an amount
predetermined by law, of which they cannot be deprived by the testator, except by
a valid disinheritance.
b. Succeeds regardless of the will of the decedent
2. Voluntary or testamentary heirs (free portion)
a. Those who are instituted by the testator in his will, to succeed to the inheritance or
the portion thereof of which the testator can freely dispose; their right to the
succession depends entirely upon the will
b. Succeeds by reason of a will
3. Legal or Intestate heirs
a. Those who succeed to the estate of the decedent who dies without a valid will, or to
the portion of such estate not disposed of by will
b. Succeeds in the absence of a will

Legatees and Devisees

1. Legatees: one who is given a gift of personal property by will
2. Devisee: one to whom real property is one to whom real property is given by will
There are devisee(s) and/or legatee(s) only in testamentary succession
The devisee or legatee, by express disposition of the testator, succeeds him in a determinate
or individualized thing or quantity, without continuing his personality

Importance of the difference between heir(s) and legatee(s)

Although the difference between “heir” and “legatee” (or devisee), which is transcendental in
the Spanish law, has lost much of its importance in Philippine jurisdiction it does not mean that
the distinction has been entirely abolished so as to render the provisions of the Code regarding
institution of heirs useless or superfluous.

Article 887, NCC

Compulsory and Intestate heirs distinguished
COMPULSORY HEIRS INTESTATE HEIRS
Called to succession by operation Called to succession by
of law operation of law
Succeeds to his legitime even Succeeds only when the
when the testator has so deceased has not disposed of
disposed of his property by will his property by will
* an heir of whatever classification is absolutely free to accept or renounce the inheritance

Law on Legitime explained

• the law on legitime is a restriction, not on the freedom to the heir to accept or repudiate
the inheritance, but on the freedom of the testator to dispose of his property
• the fact of being a compulsory heir imposes no obligation to accept or receive the legitime

Kinds of Compulsory Heirs

1. Primary
a. Those who have precedence over and exclude the other compulsory heirs
b. Legitimate children and descendants (legitimate, legitimated, adopted)
2. Secondary
a. Those who succeed only in the absence of primary heirs
b. The legitimate parents and ascendants
3. Concurring
a. Those who succeed together with the primary or the secondary heirs
b. The illegitimate children, and the surviving spouse

Primary Compulsory Heirs

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

Parents and Ascendants

1. Legitimate and Legitimated (Secondary Compulsory Heirs)
a. Entitled to legitime only when the deceased does not have legitimate children and
descendants
b. Concurrence of illegitimate children and their descendants with parents or
ascendants of the deceased is not an obstacle to the forced succession of the
parents and ascendants because the share of the illegitimate children are taken
from the free portion and do not affect the legitime of the parents and ascendants
2. Illegitimate parents (Compulsory heir to the extent provided by Article 903)
a. Article ___, NCC: the legitime of the parents who have an illegitimate child, when
such chilled leaves neither legitimate descendants, nor a surviving spouse, nor
illegitimate children, is one-half of the hereditary estate of such illegitimate child. If
only legitimate or illegitimate children are left, the parents are not entitled to any
legitime whatsoever. If only the widow or widower survives with parents of the
illegitimate child, the legitime of the parents is one-fourth of the hereditary estate
of the child, and that of the surviving spouse also one-fourth of the estate.
b. Compulsory heirs only in the absence of legitimate, or illegitimate children of the
decedent
3. Adopting parents (not a Compulsory heir, according to Tolentino, as the law is
silent)
a. Article 342, NCC omitted by FC (impliedly repealed): the adopter shall not be a
legal heir of the adopted person, whose parents by nature shall inherit from him
b. Article 190, FC: legal or intestate succession to the estate of the adopted shall be
governed by the following rules:
i. Legitimate and illegitimate children and descendants and the surviving
spouse of the adopted shall inherit from the adopted in accordance with the
ordinary rules of legal or intestate succession;
ii. When the parents, legitimate or illegitimate, or the legitimate descendants of
the adopted concur with the adopters, they shall divide the entire estate,
one-half to be inherited by the parents or ascendants and the other half, by
the adopters;
iii. When the surviving spouse or the illegitimate children and the surviving
spouse of the adopted, they shall divide the entire estate in equal shares,
one-third to be inherited by the illegitimate children, one-third by the
surviving spouse, and one-third by the adopters;
iv. When only the adopters survive, they shall inherit the entire estate; and
v. When only collateral blood relatives of the adopted survive, then the ordinary
rules of legal or intestate succession shall apply.
c. Article 189 (1), FC: For civil purposes, the adopted shall be deemed to be a
legitimate child of the adopters and both shall acquire the reciprocal rights and
obligations arising from the relationship of parent and child, including the right of
the adopted to use the surname of the adopters.
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 d. The fact that Article 190 FC enumerates the cases where adopters inherit by legal
or intestate succession to the estate of the deceased adopted person (not making
him generally a legal heir), and is silent as to their becoming compulsory heirs,
indicated that the latter (compulsory heirs) was not intended. Adoption is for the
benefit of the adopted, and unless the law clearly intends to favor the adopter, all
doubts should be resolved against him. Due to the silence of the law on legitimes,
he cannot be entitled to the legitime of legitimate parents and in the law of
intestate, he is not given, in general, the same rights as a legitimate parent but only
such as are specifically provided in Article 190 of the Family Code.

Illegitimate Children
1. acknowledged natural children
2. natural children by legal fiction
3. other illegitimate children (e.g. adulterous children (spurious))

Natural Children by legal fiction previously not granted successional rights in previous
legislation
a. Article 287, NCC (repealed by FC): illegitimate children other than natural in
accordance with article 269 and other than natural children by legal fiction are entitled to
support such successional rights as are granted in this Code.
b. Article 269, NCC (repealed by FC): only natural children can be legitimated. Children
born outside wedlock of parents who, at the time of the conception of the former, were not
disqualified by any impediment to marry each other, are natural.

Construction of Article 887 NCC vis-à-vis illegitimate children

1. Article 887 (4) and (5) are merged into one as a group of compulsory heir.
2. Illegitimate children required to prove their filiation. They are not required to be first
recognized by their putative parents.

Enforcement of the Right

1. Successional rights recognized by the New Code can be claimed only by those whose
parents die after the effectivity of the Code. To retroactively apply the new right would
impair the vested rights of heirs, and would amount to deprivation of property without due
process of the law.
2. Illegitimate children can claim successional rights even if they were born prior to the
effectivity of the Code, as the death of the parent and not the birth of the illegitimate
child, determines the right of such child to succeed.

Surviving spouse
1. Valid marriage required between deceased and the survivor
2. When marriage is null and void ab initio (as in bigamous and incestuous marriages), the
survivor in the supposed marriage is NOT a surviving spouse entitled to legitime
3. But when the marriage is bigamous and the spouses contracted the marriage in good
faith, BOTH widows share equally in the portion which is the legitime of the surviving
spouse (following the principles of the Laws of the Partidas)
4. When the marriage is merely voidable, the existing marriage remains valid and produces
civil effects until set aside by the court having jurisdiction in a proper action for
annulment.

Effects of Legal Separation

1. Article 892 must be read in conjunction with Article 63 (4) of the Family Code (formerly
Article 106, NCC)
a. Article 892, NCC:
b. Article 63 (4), FC:
2. Guilty spouse excluded from succession, testate or intestate. Therefore, in case of legal
separation, the widow/ widower will be entitled to succeed only when he or she is the
innocent spouse

Effect of Reconciliation
1. Article 66 (2), FC (formerly Article 108, NCC): the final decree of legal separation
shall be set aside, but the separation of property and any forfeiture of the share of the
guilty spouse already affected shall subsist, unless the spouses agree to revive their
former property regime.
2. If after such reconciliation, one of the spouses should die, the survivor gets his/her
legitime regardless of whether he or she is the guilty party.
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Effect of Death before Decree
If the death occurred during the pendency of the legal separation proceedings, the action is
allowed to continue, not for the purpose of the suspension of the marriage (which is already
dissolved by death) but for the purpose merely of determining whether there is no ground for
legal separation.

Effect of separation in fact

Right of legitime is preserved. The law cannot be expected to inquire into facts not judicially
established.

Article 1003, NCC

Collateral relatives

Articles 1004-1010, NCC

Applications
a. Full blooded brothers and sisters (proceeding from the same father and mother
inherit in equal shares
b. Concurrence of half brothers and sisters alone, Article 1007 applies. There is equal
division of all the property of the common parent, irrespective of the time when the
property was acquired.
c. Concurrence of full and half brothers and sisters, full blooded take portion in
inheritance twice those of half blood brothers and sisters
d. When all the brothers of the decedent may have predeceased him; or the only
brother or all the brothers may have repudiated the inheritance; or such brothers
may all be incapacitated: Nephews and nieces to succeed by their own right, and
not by the right of representation.
e. Concurrence of uncles and aunts with nephews and nieces: The law allows the right
of representation because the number of nephews and nieces will directly affect the
apportionment should it be made per capita.
f. Concurrence of nephews and nieces alone: there is no need for the right of
representation as there are no uncles or aunts who will be prejudiced.
g. Concurrence of full-blood and half-blood nephews and nieces: full blood and half
blood relationship of nephews and nieces taken into account in view of Article 1009,
contrary to the generality that Article 975 seems to suggest.
h. Concurrence of brothers and sisters with nephews and nieces: brothers or sisters
shall inherit per capita while nephews and nieces shall inherit per stirpes pursuant
to Article 1005. Thus, brothers or sisters inherit their own right while nephews or
nieces inherit by the right of representation.
i. Concurrence of nephews or nieces of half blooded brothers and sisters with nieces
and nephews: same rule in Article 1005 apply in Article 1008. Brothers and sisters
shall inherit in their own right (the whole blooded taking twice the share of those
half blood), while nephews or nieces inherit by the right of representation (the
whole blooded taking the portion of their father/mother which is double to that
pertaining to the father/mother of the half blooded nephews and nieces.

Article 1009, although it does not state any order of preference, must be understood in
connection with the general rule that the nearest relatives exclude the father.

2. Capacity to Succeed

a. Determination

Article 1034, NCC

1. Paragraph 1: inasmuch as succession opens at the death of the decedent, it is only logical
that it is only then that the capacity of the heir is determined.
2. Paragraph 2: it is only a clarification of the general principle, because as long as the
judgment of in second, third, and fifth causes of unworthiness has not become final or the
month allowed in the fourth cause has not elapsed, the reason for incapacity cannot exist.
Therefore, the determination as to whether capacity to exist should be suspended up to
that time.
3. Paragraph 3: in case the institution is conditional, there is taken into consideration, not
only the moment of death of the decedent, but also the time when the condition is
fulfilled, because it is why at the latter moment that the rights to the succession are
consolidated and produce their effects.

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Conditional institution
What is referred in paragraph 3 is suspensive condition, because this is the condition on the
fulfillment of which the right depended thereon are perfected.

1. Death (of heir) before condition. As discussed in Article 8778, the death of the heir,
devisee, or legatee before the happening of the suspensive condition renders the
testamentary disposition inoperative and without effect. He does not transmit anything to
his heirs, even if his death occurs after that of the testator. No right has been vested upon
the heir, et.al., because the condition has not yet been fulfilled.
2. Condition after death. Even if the condition should happen after the death of the hair,
et.al., his own heirs cannot claim any right through him, because his death has
extinguished his personality and capacity to succeed. He would be wanting in the capacity
to succeed at the time of compliance with the condition.

Article 1039, NCC

 Reason for the adoption of the new article: the provision is in line with the principle
established in Article 16, paragraph 2, which provides “intestate and testamentary
successions, both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary provisions, shall be
regulated by the national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the country wherein said
property may be found.
 Rule as to the intrinsic validity of the provisions of the will: as regards the intrinsic
validity of the provisions of the will, as provided by Articles 16 (2) and 1039 of the Civil
Code, the national law of the decedent must apply.

CAYETANO VS. LEONIDES 129 SCRA 524

Facts: Adoracion Campos, a citizen and permanent resident of USA died and left a will executed
in the said country. She died leaving properties both in the Philippines and the USA. As a
compulsory heir, Hermogenes, Adoracion’s father, executed an affidavit of Adoracion whereby he
adjudicated into himself the ownership of the entire estate of Adoracion.
Nenita, the sister of the decedent, filed a petition for reprobate of the will which was allegedly
executed in the USA and for her appointment as administrator of the state of the said decedent.
The petitioner argue that since the respondent judge allowed the reprobate of the will,
Hermogenes was divestive of his legitime which was reserved by law for him.

Issue: whether the Philippine law shall apply in as much as the National Law of the deceased
does not provide legitime?

Held: Under Article 16 (2) and Article 1039 of the Civil Code, the law which governs Adoracion’s
will is the law of the USA which is the National Law of the deceased. It is therefore evident that
whatever public policy or good customs maybe involved in our system legitimes. Congress has
not intended to extend the same succession of foreign nationals. For it has specifically chose to
leave the amount of successional rights to the decedent’s national law. Specific must prevail
over general law.

b. Who may succeed?

Article 1024, NCC

Capacity presumed
Every person has capacity to succeed mortis cuasa. The presumption of the law, in the absence
of some provision excluding him, is always in favor of capacity.

Only persons may succeed mortis cuasa

In order to be considered a person, either natural or artificial, it is necessary to have legal
existence or juridical personality. Once endowed with juridical personality, the person’s capacity
to succeed follows as a matter of course, unless some special cause for disqualification or
incapacity exists.

Requisites for the possession of capacity to succeed

1. General capacity of the person, whether natural or artificial, according to law
2. No incapacity or prohibition to succeed expressly provided by law.

Applicability of rules of incapacity (2nd paragraph construed)

Provisions relating to incapacity apply equally to testate and intestate succession. This is a
general statement which is not supported by the specific provisions of the law providing for
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incapacity to succeed. Incapacity under paragraphs 1 to 5 of Article 1027, as well as Article 1028
are applicable only to testamentary succession. Thus, the provision of the second paragraph
must be considered only as a general rule, without prejudice to the determination of the true
scope of specific disqualifications.

Kinds of incapacity
1. Absolute per se: those absolutely incapacitated are disqualified to succeed in any form,
to anyone, or to any quantity of property. (already died at the time of death of decedent)
2. Relative or par accidens: those who are relatively incapacitated are disqualified only
with respect to certain persons or property. (not yet alive)
3. Unworthiness (A relative incapacity): by reason of certain acts a person who has
capacity to succeed is deprived of it.

Article 1025, NCC

Conditions prescribed by Article 41

For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered
from the mother’s womb. However, if the fetus had an intra-uterine life of less than seven
months, it is not deemed born if it dies within twenty-four hours after its complete delivery from
the maternal womb.

Judicial Existence Essential

1. Although the conceived child is considered born for all purposes favorable to it,
nevertheless, it lacks true juridical personality. It acquires personality only when it is
subsequently born with the conditions mentioned in Article 41.
2. When the institution is under suspensive condition or from a day certain, the succession
does not really open except from the happening of the condition or the arrival of the day
certain. In such cases, even if the unborn person instituted has not yet been conceived at
the time of the death of the testator, if it is subsequently born and has legal personality at
the time the condition happens of the day arrives, then it has the capacity to succeed. (if
there is condition, it will prevail over the death)

Deviating Comments by authorities on capacity to succeed

1. Manresa. In certain cases a child not even conceived at the time of the death of the
testator may yet succeed mortis causa. Manresa’s example however is really the
institution of a class and not of particular individuals, hence the presence of any number
within the class at the time the succession opens makes the institution valid; whereas, if
the class does not exist at all, the institution is void.
2. Manresa. The actual existence of an association or corporation at the time of the death of
testator is not essential. The fact of actual existence, he maintains, is different form the
fact of being permitted by law. He maintains that the existence of the corporation at the
time of the testator’s death does not render it incapacitated to succeed, if it is
subsequently organized.
3. Scaevola. Strictly adhering to legal principles, Manresa’s corporation cannot succeed, but
that justice and the dictates of practical existence demand that the probable public and
private utility that may be produced by such dispositions should not be nullified.

Sanchez Roman’s view in consonance with concept of capacity to succeed

1. Associations or corporations which do not legally exist at the time of the opening of
succession are incapacitated to succeed. Permission by the law is a necessary result of
their legal existence, and its absence presupposes the inexistence of the juridical entity.
2. There is absolute incapacity when there is no civil personality. Incapacity to succeed is a
consequence of the inexistence of natural or juridical parsons before the civil law.
3. The heir who dies before, as well as he who is not yet conceived at the time of the death
of the testator, cannot succeed because of lack of juridical personality at the precise
moment when the transmission of successional rights takes place.

Article 1026, NCC

Capacity by law
Not all entries mentioned herein are persons having juridical existence. They succeed, not by
virtue of the general rule of capacity, but by reason of the special provision of this article
conferring capacity upon them.

Article 1029, NCC

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Scope of Application
1. The disposition referred to should not be confused with one which has merely the
character of a condition, burden or charge imposed upon an heir, legatee or devisee.
2. the article contemplates a case where the testator has made a disposition for the
application of the whole or part of his property for prayers and pious works for the benefit
of his soul, but has not specified the particular prayers or pious works to which his
property shall be applied.
3. The disposition made herein is applicable only when the testator has not provided
otherwise in his will. The moment the testator specifies the application to be made, or the
person charged with such duty, then this property cannot be distributed in the manner
prescribed by the article.
4. if the testator should dispose of his property only for pious works, without any mention of
prayers; or if he merely disposes of it for prayers, without referring to pious works, the
distribution provided for in this article cannot be observed.

Soul as beneficiary
The real beneficiary in such a will is the soul of the testator. Although death extinguishes juridical
existence, this article allows dispositions for the benefit of the soul, giving due respect to the
religious and moral ideas of the deceased. Thus, if the testator merely states that he institutes
his soul (something that has no legal existence) it is believed that the present article will apply.

Article 1030, NCC

Application of the article

This article contemplates a disposition in favor of persons who may be unknown to the testator
A class herein is instituted, and the class is determined. It is the determination of the individuals
belonging to the class that is left to the persons mentioned by the law.
In case the testator has not designated the person to make the designation of the poor and the
distribution of the property among them, the executor or administrator of the estate shall do so.
Under the Rules of Court, there will invariably be an executor or administration for the
settlement and distribution of the estate in a case as contemplated by the article. The
intervention of the justice of the peace, the mayor, and the municipal treasurer will never take
place.

Appeal to the Court

*under the present state of the law, the determination that there are none who qualify as “poor”
can be contested by persons claiming to be poor. The selection of some as poor can also be
impugned by others.
*the Court cannot be considered as a mere rubber stamp to give the seal of approval to
whatever may be reported to it. However, there is a very strong presumption in favor of
upholding the selection or conclusions of the persons designated to make the determination of
two are poor, in the absence of manifest error or bad faith, as such persons are practically the
agents of the testator in making the selection.

None qualifying as poor (intestacy)

*When none qualify as poor, the property should be distributed as in case of intestacy, the
portion originally destined for the poor passing to the legal heirs of the testator.
*unlike Article 1029, the present article is an institution of a definite and determined class,
whose existence is essential for the validity of the testamentary disposition. In case, thus where
the express will of the testator cannot be given effect for legal reasons, the law supplies his
presumed will in the form of intestate succession.

PARISH PRIEST OF VICTORIA VS. RIGOR 89 SCRA 493

Facts: Father Rigor, the parish priest of Pullilan, Bulacan, died on August 9, 1933 which was
probated by the CFI of Tarlac. In his will, he named as devisees, his nearest relatives, his three
sisters and his cousin. In addition the will contained the following controversial request to his
nearest male relative who would study for the priesthood.

The heirs of Father Rigor, prayed that the bequest declared inoperative and that they be
adjudged as the persons entitled to said rice lands since no nearest male relatives of the testator
has ever studied for the priesthood.

Issue: whether the bequest to a nearest male relative who would study for the priesthood could
be operative despite no male relative ever studied for the priesthood.

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Held: The Court held that the bequest refers to the testator’s nearest male relative living at the
time of his death and not to any indefinite time thereafter. “In order to be capacitated to inherit,
the heir or legatees must be living at the moment the succession opens, except in case of
representation when it is proper (Article 1025,CC). To construe them as referring to the nearest
male relative at anytime after his death would “render the provisions difficult to apply and create
uncertainty as to the disposition of his estate.”

c. Who are incapable of succeeding?

Article 1027, NCC (relative incapacity)

Extent of incapacity
1. Disqualifications (1-5) apply only to testamentary succession. The persons
disqualified are disqualified only under certain circumstances, and in relation to particular
testators. Their disqualification is thus only relative.
2. Disqualification (6) is misplaced, it has no common basis with the others preceding
it. The disqualified entities are absolutely incapacitated. They cannot succeed any person
at any time or under any circumstance by testament or by intestacy, this paragraph
should have formed part of Article 1025.

Disqualification of Priest or Minister

1. The purpose of the provision is not to restrict the liberty of the testator to dispose of his
property, but to safeguard the legal heirs from being defrauded by suggestions of some
confessors who may induce penitents to dispose of their property in the manner and to the
persons contemplated by the prohibition.
2. If the testamentary disposition was made before the last illness, it produces legal effect
even if the priest received the confession of the testator or administered spiritual aid to
him during his last illness.

Will during the last illness

1. Last illness means that of which the testator died. It is immaterial whether the illness was
protracted or brief, chronic or acute. The illness must be such, however, that there is
danger that the testator may die of it.
2. it is not essential that the testator die of the particular illness during which the will was
made. If it cannot be determined whether at the time of his death he was already
completely cured or not of the illness during which he made his will, the testamentary
disposition remains inoperative even if the death be due, not to such illness, but to some
other cause such as an accident.
3. if the testator recovers from his illness and he enjoys normal health for a sufficient length
of time as to enable him to reflect on the wisdom and the consequence of the
testamentary disposition he made during his illness, then his failure to revoke the
testament must be considered as a ratification of the same. But if no such sufficient length
of time has elapsed, tacit confirmation cannot be presumed and the nullity of the
disposition remains.

Confession during last illness

• The law requires that the priest must have heard the confession of the testator during his
last illness. A priest, however, who does not hear the confession of the testator during his
last illness, but acts merely as his adviser, staying by his side during such illness, is not
incapacitated by the article.
• The law has extended expressly the disqualification to ministers of other religions, which
do not provide for confession, like those by Catholic priests, but for spiritual aid or
assistance before death.

Will made after confession

• The prohibited disposition is that which the testator may make in favor of the priest who
may have shriven him; the verbs used are both in subjunctive mode, but they give rise to
the inference that the confession takes place before the making of the testamentary
disposition.
• If there has been undue influence by the confessor even before the will was made, the
remedy is not under the present article but under Article 839, which provides among the
other cause of disallowing a will: “if it was procured by undue and improper pressure and
influence on the part of the beneficiary or some other person.”

When no testamentary benefit

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 • to be inoperative, the testamentary disposition must be in favor of the disqualified. When
the disposition is not equivalent to making such persons as heirs, legatees or devisees, the
disposition may be valid if it does not give any benefit to them.
• The law does not incapacitate the disqualified from being executors since under the Rules
of Court, the executor becomes as such only after letters testamentary have been issued
to him, and all of his acts are subject to the supervision and approval of the probate court.
He may receive compensation for his services as executor (just payment and not an act of
liberality) but such compensation is regulated by law.
• It is valid that the testator leave certain sums for the confessor or his relatives within the
4th civil degree for the performance of certain determinate services, such as writing a
book, etc.. when a person has the qualifications for the work.

No prejudice to intestacy
• if the confessor or minister or his relatives within the 4th civil degree are also relatives of
the testators are compulsory heirs, it is clear that they get their legitimes, because these
are given to them by force of law and not by the will of the testator (intestate succession).
If they, however, may succeed only in case of intestacy, or even if compulsory heirs as to
the free portion is concerned, the prohibition applies.
• A void testamentary disposition does not absolutely disqualify the relatives form
succeeding, if they are entitled to succeed according to the order of intestate succession.
There will be intestacy with respect to the past ineffectively disposed, unless, it passes by
right of accretion to other heirs.
• If the priest or his relatives happen to be the only intestate heirs, they get the property,
not as testamentary heirs but intestate heirs.

Incapacity of guardian
• a testamentary disposition made by a ward in favor of his guardian before the approval of
the final accounts of the guardianship is void, even if the ward dies after the approval of
such accounts.
• The determined point with respect to time is the date of the final approval of the final
account. “Final accounts” means that which is submitted by the guardian upon the
termination of his authority as guardian, either by his removal or resignation or the
disappearance of the cause of guardianship.

What guardian covered

All guardians, whether a guardian of his person or a guardian for his properties, are covered
by the disqualification. They are disqualified as long as they have any responsibility as
guardians.

Relatives of guardian
• the last does not disqualify the relatives of the guardian to succeed the ward by will
• if it can be shown that the guardian’s relatives have been instituted merely as an indirect
means of enabling the guardian to benefit from the inheritance left by the ward, then the
institution is void, not because of the present article but by reason of Article 1031.

Incapacity of Testamentary Witness

The exception provided by Article 823 should be read into the provisions of paragraph 4 of the
present article. If there are three other component witnesses to the will, the fact that the
beneficiary attested such will does not have any material effect upon the existence or validity of
the will. His intervention thus is not essential to the effectivity of the disposition in his favor.

No beneficial interest
A testamentary disposition which does not give a beneficial interest to the witness does not
disqualify him. Thus, a provision giving to the witness a trust or power to sell does not
constitute such an interest as will render him incompetent or will avoid the testamentary
disposition.

Incapacity of physician, nurse, or druggist, etc.

• the physician, surgeon, nurse, health officer or druggist who took care of the testator
during his last illness has such a great deal of influence over the mind of the testator that
he is absolutely prohibited to succeed under the testator’s will.
• To be disqualified, the recipient must have taken care of the testator during his last
illness, in a manner that is continuous. A doctor called in for consultation by the physician
attending the testator would not be disqualified, nor the pharmacists who merely prepared
the medicine for him.
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 • It is not necessary that the recipient be a legal practitioner of his profession. any person
practicing medicine legally or illegally and even their assistants are deemed included in
the prohibition.
• The disqualification applies only when the will was made during the last illness of the
testator and after the beneficiary had at least begun to take care of him.

Provision for remuneration

A testamentary provision which is remuneratory (payment of professional fees) is valid as
such disposition is not a gratuitous act but simply a compliance with an obligation to pay for
services rendered.

Applicability to intestacy
• The paragraphs of the present article, except the last, refer only to testamentary
succession and does not include intestate succession.
• The purpose of these disqualifications is to avoid testamentary disposition in favor of
persons who are conclusively presumed to have influenced the making of the will in their
favor by reason of their special relations to the testator. This reason cannot exist in
intestate succession, where it is the law and not the decedent that disposes of the
property in favor of the heirs.

Exceptions as to close relatives

The exception in paragraph 3 does not extend to the other paragraphs. The different paragraphs
of the present article cam from different independent articles of the old Civil Code and the Code
of Civil Procedure, and it was only in Article 753 of the old Civil Code, referring to the
disqualification of the guardian, that the exception in question was provided.

Article 1028, NCC

Article 739

Application of the Article

These disqualifications are based on considerations of morality, and are intended to prevent
circumventing of the prohibitions on donations by resorting to the making of a will as means of
disposing of property in favor of the disqualified donee.

Article 1031, NCC

(Y caused the death of grandchild of X)

Interposition prohibited
• What the law prohibits to be done directly cannot be done by indirection. The article
renders void attempts to go around the prohibitions against dispositions in favor of
incapacitated persons.
• The interposition may be made in either of these ways:
o By the institution of a person who has capacity, with a verbal charge or direction to
deliver the inheritance to the incapacitated person
o By disguising the disposition in the form of a contract
o By simulating debts in favor of the incapacitated

Proof of interposition
• The prohibited interposition must always be proved, it cannot be presumed.
• It is enough to show the absence of benefit to the person instituted, and the ultimate
enjoyment of the inheritance by the incapacitated person.
• The property need not be actually delivered to the incapacitated person, if it is he who
really enjoys and benefits from it.

Who are disqualified persons

• The parties who are really disqualified are those who are in the position to wield an
influence upon the mind of the testator: the priest, the guardian, and the attesting
witness.
• Dispositions made in favor of their relatives who are expressly mentioned by the law are
rendered void, not because those relatives are “disqualified,” but because the law
presumes juris et de jure that they are merely interposed for the benefit of the real
incapacitated person. Hence, a testamentary disposition instituting an heir or legatee, with

13
 the intention that the relatives mentioned should ultimately be the real beneficiaries, is
not such an interposition as is prohibited by the article.
• They do not include those who are such by reason of unworthiness. The institution of the
unworthy person, with knowledge of the cause of unworthiness, is by itself a tacit pardon
by the testator. If such institution is valid, there is no reason why the interposition should
be void.
(X gave – Y, guilty of adultery/ convicted of adultery)

Frustration of testator’s intent

• When a testator disposes of his property in a prohibited manner, he must be held to
assume the risk that his will be frustrated.
• Even if he does not intend the person interposed to benefit under his will, the law should
discourage violations of its provisions, and the solution suggested will at least tend to
have the effect.

Article 1032, NCC – unworthiness

Nature and basis of unworthiness

• The incapacity is based on considerations of morality, which have made the law deprive of
inheritance those who have made themselves unworthy of it according to ordinary social
appreciation.
• Unworthiness produces its effects, even against the will of the deceased, as when he
pardons the act of unworthiness in a manner different from what the law prescribes in
Article 1033.
• The causes of incapacity by reason of unworthiness are applicable to testate and intestate
succession, despite the fact that some paragraphs thereof expressly refer only to
“testator”
• Incapacity by reason of unworthiness is not absolute, it does not disqualify a person to
succeed every other person, but merely disqualifies him to succeed the particular person
against whom the act of unworthiness has been committed.

Abandonment of Children
• abandonment of children is a ground for disinheritance (Article 920)
• “Abandonment” as a cause of unworthiness, is not used in the limited sense of having
exposed the children to the danger of death, but in the broad and general sense of not
giving proper care to the children, not supporting them, and not attending to their
physical, moral or educational welfare.

Inducing immorality, Attempts against virtue

• Similarly discussed under Article 920
• To be disqualified under these grounds, there must be some positive act showing
perversion on the part of the parent; he must have led or persuaded the daughter to live a
corrupt of immoral life, or he must have made an attempt against her virtue.
• Mere act of inducing his daughter to lead a disgraceful life, even if the latter refuses to
obey him, would be a sufficient cause for unworthiness, inasmuch as the unsuccessful act
shows the moral perversity of the parent.
• Mere tolerance by a parent of the immoral or corrupt life which his daughter has chosen to
live, however, does not make him unworthy of succession.

Attempt against life

• Also discussed as a ground fro disinheritance under Article 919
• Elements of this cause to operate
o The heir must have made an attempt against the life of the decedent, his or her
spouse, descendants, or ascendants
o There must have been a final conviction of such attempt
• The degree of the commission of the crime is not material: whether there may be a
mitigating circumstance does not alter the situation. What is important is that there was a
homicidal intent. Further, where the heir is merely an accomplice, he remains to be
unworthy.
• It is essential that the heir must have been convicted by final judgment to become
unworthy. Hence, when the case is dismissed because the heir dies before the judgment
can be rendered, or because the crime has prescribed, or because of some lawful defense,
there will be no unworthiness.

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 • Executive clemency or prescription of penalty does not save him from unworthiness to
succeed inasmuch as such facts imply the final conviction.

False accusation
• Elements of cause are discussed under Article 919
• False accusation includes not only the filing of complaint against the decedent without
cause, but also declaring or testifying falsely as a witness against him.
• False testimony is equivalent to false accusation; but one who merely testifies to the truth,
even if it may incriminate the decedent and be the basis of his conviction, does not
become unworthy.

Failure to report violent death

• Requisites of the cause:
o The heir must be of full age
o He knows of the violent death of the decedent
o There is an obligation to make an accusation
o Failure of the heir to report such death to the proper authorities within one month
• This cause of unworthiness will never have the occasion to operate, as there is no
obligation to make an accusation for violent deaths under Philippine law. Under Philippine
law, deaths occasioned by crime (violent deaths) are prosecuted de oficio or at the
instance of the government, and no one is required to make any accusation.
• In the event that there should be some time a law requiring persons who have knowledge
of violent deaths to denounce the same, the cause of unworthiness will apply only when
there is a failure within one month to report such death. The heir, devisee or legatee
escapes liability by reporting the violent death even if he omits to reveal the identity of
the author of the crime or even helps him to escape.

Adultery of concubinage
• The heir, devisee or legatee who is convicted of adultery or concubinage with the spouse
of the decedent is unworthy to succeed the offended decedent. The mere commission of
the offense is not enough to disqualify.
• The testator’s spouse is not rendered unworthy by the article. Only his or her paramour is
disqualified to succeed the offended spouse.
• If the offended spouse asks for legal separation, on the ground of adultery or concubinage,
and it is decreed, the guilty spouse is rendered incapacitate to succeed the offended
spouse ab intestate or by a will already existing at the time of the legal separation, under
Article 63 of the Family Code: “(4) The offending spouse shall be disqualified from
inheriting from the innocent spouse by intestate succession. Moreover, provisions in favor
of the offending spouse made in the will of the innocent spouse shall be revoked by
operation of law.”
• The article does not disqualify the guilty pair from succeeding each other. Under Article
1028 in relation to Article 739, however, they cannot succeed each other by will or
testament.

Acts relating to will

• the acts constituting the cause of unworthiness
o causing the testator to make a will
o causing the testator to change an existing will
o preventing the decedent from making a will
o preventing the testator from revoking his will
o supplanting, concealing, or altering the testator’s will
o falsifying or forging a supposed will of the decedent
• The first four acts must have been committed through fraud, violence, intimidation, or
undue influence. The last two acts by themselves, executed in any manner, will cause
incapacity.

Effects of unworthiness
• Incapacity by reason of unworthiness disqualifies a person from succeeding to the estate
of the person against whom the act of unworthiness has been committed.
• Loss of legitime applies to the causes of unworthiness, even if the express provision on
loss of legitime merely does away with the cause of doubt as to the effect of unworthiness
upon the legitime. The reproduction of Article 761 of the old Civil Code in Article 1036 in
present code shoes clearly by implication that the intention of the law is to exclude the
compulsory heir who is unworthy from his legitime, but preserving the right of
15
 representation in the descending line, just as in the case of disinheritance. Article 1035
uses the words “persons excluded from inheritance” in referring to the unworthy heir, and
exclusion can only mean total exclusion from the inheritance including the legitime.

Summary of the effects

• Disqualification by reason of unworthiness is a kind of legal disinheritance. It is a penalty
declared by law ___ ___ ___ offenses committed by the heir, etc. against the decedent.
• The law cannot permit that the inheritance be acquired in full or in party by those guilty of
these offenses against the deceased. The effect of unworthiness is thus an exclusion from
the entire inheritance; it causes constitute impediments to success.
• The unworthy heir, etc., is treated by the law as if he did not exist, or had predeceased the
decedent. He inherits nothing.

On donations
• Donations inter vivos are not affected by the incapacity of the donee to succeed the
donor. Such donations shall be considered as having been made to strangers, even if the
donees should be compulsory heirs.
• It should be noted that the act of unworthiness may constitute an act of ingratitude which
would entitle the donor, during his lifetime to revoke the donation.

Article 1033, NCC

Pardon of unworthiness
• The testator is given the power to condone the causes of unworthiness. Since the
incapacity arises from the offense or act committed against the decedent, it is only
reasonable that the latter should be given the right to determine whether the incapacity
should subsist or not.
• The pardon may be either express or implied. The forms of such pardon are limited to
those expressly specified by the law, no other form being admissible.
o Express pardon: made by the execution of a document or any writing in which the
decedent condones the cause of incapacity. The only cardinal requisite is that the
pardon must be after the act of unworthiness has been committed.
o Implied pardon: tacit or implied pardon of the cause of unworthiness is effected if
the testator had knowledge thereof at the time he made the will. The mere silence
of the testator, or his omission to expressly disinherit the offender, is not tacit
pardon. Reconciliation, like what can be made to make disinheritance ineffective,
cannot restore the unworthy heir in such case.
• Exclusive clemency, or pardon by the President, does not erase the unworthiness or
incapacity of the heir.

Revocation of Pardon
Whether the pardon of unworthiness can be revoked or not depends upon the manner in which
the pardon is made.
• if the pardon is express, or made in writing other than a will, then the pardon is
immediately operative and irrevocable
• if the pardon is tacitly made by instituting the disqualified person in a will, the subsequent
revocation of the will or of the institution should be considered as rendering the pardon
ineffective. As the institution does not become operative except upon the death of the
testator, the institution never became effective when the institution or the will itself has
been revoked. The same result follows if the will is void because it lacks the formalities
required by the law.

Effect of pardon
• once the act of unworthiness is pardoned, the heir is restored to full capacity to succeed
the decedent, as if the cause of unworthiness had never existed.
• The capacity that has been recovered cannot cease except by a new cause.

d. effect of alienations by the excluded heir

Article 1036, NCC

Validity of alienation
• The validity of alienation made by the disqualified heir before the declaration of incapacity
is made to depend upon the good faith of the transferee, irrespective of the good or bad
faith of the heir who made the alienation.
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 • If the transferee acted in good faith, or without the knowledge of the facts which render
the transferor unworthy, the alienation, whether gratuitous or for a valuable consideration,
is valid as to such transferee.

e. rights of the excluded heir

Article 1035, NCC

Representation of unworthy heir

• Unworthiness disqualifies a compulsory heir from succeeding even to his legitime. His act,
however, being personal, should prejudice the innocent children and descendants of an
unworthy child or descendant.

Application of Article 1035

• Article 1035 provides for the representation of the unworthy child or descendant by his
children and descendants.
• Only a child or descendant can be represented; unworthy parents and ascendants, or the
surviving spouse cannot be represented.
• If the unworthy child or descendant does not himself have children or descendants, his
other heirs cannot acquire his rights, which are reserved by the article only for his children
and descendants.

Amounts transferred
• The children and descendants of the unworthy child or descendant shall acquire his rights
to the legitime.
• If the unworthy child or descendant is the only compulsory heir, or if when concurring with
the children or descendants who are compulsory heirs there is no substitute appointed,
then there shall be intestate succession. The children or descendants of the unworthy heir
will get not only their parent’s legitime but also whatever part of the free portion may be
subject to distribution among the intestate heirs.

Article 1037, NCC

Indemnity for expenses

• The disqualified person who has entered upon the property may have incurred necessary
and useful expenses, as well as expenses for ornamentation, on the hereditary property.
• When he is obliged to return the property to the rightful heir, his right to indemnity for
such expenses or to remove the improvements he has made depends upon his good or
bad faith.
• The rules on possessors in good faith or in bad faith shall be applicable. Necessary
expenses for preservation therefore must be reimbursed to every possessor, whether he
be in good faith or in bad faith.

Article 1014, NCC

Sources of provision
This article was taken from Rule 92 (now Rule 91, Section 4, ROC)

Rule 9, Section 4, Rules of Court

- “When and by whom claim to estate filed. – If a devisee, legatee, heir, widow, widower or
other person entitled to such estate appears and files a claim thereto with the court within
5 years from the date of such judgment, such parson shall have possession of and title to
the same, or if sold, the municipality or city shall be accountable to him for the proceeds,
after deducting reasonable charges for the care of the estate; but a claim not made within
said time shall be forever barred.”

f. liabilities of the excluded heir

Article 1038, NCC

(what to return: property and fruits, accessions, rents)

Restitution with fruits

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 • The obligation to make restoration (restitution of the hereditary property, together with all
its fruits and accessions, to the rightful owner) is imposed upon all incapacitated persons,
whether the incapacity be absolute, relative, or by reason of unworthiness.
• The law here conclusively considers the incapacitated heir as a possessor in bad faith.
Whatever the true nature of the possession, whether in good or bad faith, the
incapacitated person returns the thing with its accessions and the fruits and rentals he has
received or could have received through the exercise of reasonable diligence.
• If the incapacitated person has not received rentals, but has himself occupied the
hereditary property; it is just that although he does not materially receive the rentals from
a 3rd person, he should be obliged to pay the reasonable amount of rentals, which would
be the true measure of the benefit he receives.

Improvements and deteriorations

• Outside of the matters covered by Articles 1036, 1037 and 1038, the rights and
obligations of the incapacitated persons who has entered upon the hereditary property are
governed by the general rules applicable to possessors, in which the determining factor is
good or bad faith.
• This includes such matters as the right to improvements and the liability for losses and
deteriorations.

g. prescription of action

Article 1040, NCC

Action to recover inheritance

• As a consequence of Article 1038, a limit should be fixed as to the time within which the
action to compel such restitution may be brought, i.e., 5 years from the moment of
possession by the disqualified person.
• The action is not one solely for the purpose of declaring the incapacity of the heir who has
taken possession of the hereditary property. The action is essentially to compel such heir
or legatee to restore the property, its accessories, fruits and rentals; but where the
judgment to that effect depends upon a finding in the same cause that the heir or legatee
in possession is incapacitated.

Parties to action
• plaintiff
o Those who may have an interest in the succession, obviously including those who
would inherit the property once the incapacity of possessor is declared.
o If no substitution is provided and the right of accretion does not exist, and there are
several intestate heirs, the action pertains in the first instance to those of the
nearest degree; if they do not wish to bring the action, then those next in degree
may bring it, and so on in their order or succession.
• Defendant
o If at the time the action is brought, the property has passed to the heirs of the
incapacitated person, such heirs may be made defendants
o If the property has been alienated to the incapacitated person, the transferred is
the proper defendant.
o This is based on the principle that neither the heirs nor the transferee of the
incapacitated person can acquire a greater right that he has. This is without
prejudice, of course, to the provision of the Spanish Mortgage Law and the Land
Registration Law.

Effects of administration proceedings

• if the administration proceedings have been instituted for the settlement of the estate of
the testator, and in such proceedings an order of distribution is issued by the court, in
which property is adjudged to a person who is incapacitated, it may be asked whether
such adjudication is conclusive and can no longer be attacked once the administration
proceedings have been terminated.
• The conflicting rights to the property of the deceased are to be litigated, and the question
of who is entitled to the properties left is determined, in the administration proceedings.
• The determination is conclusive upon all parties interested who may have notice of such
hearing, whether actually appearing therein or not therein. Thus, if in the order of
distribution, property of the deceased is given to an incapacitated person, such

18
 adjudication will be conclusive upon all those who had notice of the hearing before the
distribution. A sensu contrario, it does not bind those who have no notice of the hearing.

C. Object of Succession

Article 776, NCC

What inheritance includes

• The inheritance does not include everything that belongs to the deceased at the time of
his death.
• Inheritance is limited to the deceased’s property, rights, and obligations not extinguished
by his death.
• In addition, however, to the transmissible rights and obligations existing at the time of the
decedent’s death, all property accruing thereto from that time will pertain to the heir.

Rights and obligations extinguished by death (enumeration)

1. Those arising from marriage, either with respect to the persons or as regards the property
of the spouses.
2. The action for legal separation, which belongs only to the innocent spouses.
3. The action to annul marriage.
4. The obligations to give legal support, except in cases expressly provided by law.
5. The right to receive support.
6. The rights of patria potestas
7. The right of the guardian.
8. The right of usufruct.
9. The right of the donor to revoke the donation by reason of ingratitude of the donee, if he
does not revoke the donation even if he can do so.
10.The rights arising from agency, nut not the effects of the agency already executed.
11.Criminal responsibility.

Rights which are intransmissible

1. Rights arising from public law (e.g. suffrage and public employment)
2. Private rights founded on purely personal relations
3. Private rights whose duration is limited by law to the lifetime of the owner
4. Private rights which require the intervention of the owner for their exercise

Rules observed
1. Rights which are purely personal, not in the inaccurate equivalent of this term in
contractual obligations, but in its proper sense, are, by their nature and purpose,
intransmissible, for they are extinguished by death (e.g. civil personality, family rights,
discharge of public office).
2. Rights which are patrimonial or relating to property are, as a general rule, not
extinguished by death and properly constitute part of the inheritance, except those
expressly provided by law or by the will of the testator (e.g. usufruct, personal servitudes).
3. Rights of obligation are by nature transmissible and may constitute part of the inheritance,
both with respect to the rights of the creditor and as regards the obligations of the debtor.
Exceptions:
a. Those which are personal, in the sense that the personal qualifications and
circumstances of the debtor have been taken into account in the creation of the
obligations.
b. Those that are intransmissible by express agreement or by will of the testator.
c. Those that are intransmissible by express provision of law, such as life pensions
given under contracts.

Obligations of deceased
• Debts: The provisions of the Rules of Court on the settlement of the estate of the
deceased person cannot be overlooked. The heirs of the deceased are no longer liable for
the debts he may leave at the time of his death. Such debts are chargeable against the
property or assets left by the deceased. Only what remains after all such debts have been
paid will be subject to distribution among the heirs. If the decedent’s property is not
sufficient to cover all of them, the heirs cannot be made to pay the uncollected balance.
• Money debts: Only money debts are chargeable against the estate left by the deceased,
those are the obligations which do not pass to the heirs, but constitute a charge against
the hereditary property.

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 • Other obligations which do not constitute money debts are not extinguished by death, and
must still be considered as forming part of the inheritance (e.g. lease, obligation to pay
rent, deliver land sold by the decedent, especially sale by installment).
• (Relate Section 1311, NCC; especially when estate passed on to the heirs prior or without
proceedings).

Article 781, NCC

Tolentino: Article 781 erroneous

• Article 781 is not only a superfluity but also creates an erroneous concept of inheritance. It
is juridically erroneous to say that inheritance includes such accession.
• An heir, even without the article, is entitled to the accessions and fruits which have
accrued since the death of the decedent, by virtue of the right of accession.
• Inheritance is property acquired mortis causa; it is transmitted by death. The accession to
such property is not transmitted by death; it is acquired already by virtue of the right of
ownership which is vested from the moment of the predecessor’s death in the successor.

Article 1311, NCC

Article 1429, NCC

Article 1178, NCC

Applications of Article 1178

• when there is no stipulation with regard to the assignment of an obligation, all rights
acquired by virtue of an obligation are transmissible in accordance with law.
• An instrument evidencing a credit may be transferred or assigned by the creditor to
another, and the transferee would be considered in lawful possession of the same as well
as of the credit, unless the contrary is shown.

Article 1347, NCC

Outside the commerce of man

• All kinds of things and interests whose alienation or free exchange is restricted by law or
stipulation, which parties cannot modify at will.
• In Roman law, it includes those things which are not susceptible of appropriation or of
private ownership and which are not transmissible.

Corpse- cannot be inherited, it is outside the commerce of man.

As long as legal wife/husband has a right to the corpse.

Examples of things outside the commerce of man

1. Services which imply an absolute submission by those who render them, sacrificing their
liberty, their independence or beliefs, or disregarding in any manner the equality and
dignity of persons (e.g. perpetual servitude of slavery).
2. Personal rights (e.g. patria potestas or marital authority, the status and capacity of
persons, and honorary titles and distinctions).
3. Public offices, inherent attributes of the public authority, and political rights of individuals
(e.g. right of suffrage).
4. Property while they pertain to the public dominion (e.g. roads, plazas, squares and rivers).
5. Sacred things, common things (e.g. air and the sea), and res nullius (as long as they have
not been appropriated).

Existence of object
The object
• must be in existence at the time of the perfection of the contract, or
• has the possibility or potentiality of coming into existence at some future time

Future things
• future things can be object of contracts
• future things are those which do not belong to the obligor at the time the contract is made
but may be made, raised, or acquired by the obligor after the perfection of the contract
• future things includes not only material objects but also future rights
• contracts involving future things may either be

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 o conditional, or subject to the coming into existence of the thing, or
o aleatory, or one of the parties bears the risk of the thing never coming into
existence

Future inheritance
• the law generally does not allow contracts on future inheritance

CONTRACTS ON FUTURE INHERITANCE CONTRACTS BY FIDEICOMMISSARY HEIR

In order to be future inheritance, the
succession must not have been opened
at the time of the contract. An
agreement for the partition of the
estate of a living person, made between
those who, in case of death, would be in
a position to inherit from him, is void. A
contract renouncing the right to inherit
from who is still alive, is also void.
ON EVENTUAL RIGHTS
The contract entered into by a
fideicommissary heir with respect to his
eventual rights would be valid, even if
executed while the fiduciary is still
alive, provided that the testator has
already died. The rights of the
fideicommissary heir comes from the
testator not from fiduciary.

Requisites for the prohibition

1. that the succession has not yet been opened
2. that the object of the contract forms part of the inheritance, and
3. that the promissory has, with respect to the object, an expectancy of a right which is
purely hereditary in nature

Inheritance before partition not future inheritance: after the death of a person, the
properties and rights left by him by way of inheritance can be the subject-matter of a contract
among or by his heirs, even before a partition thereof has been made, because the rights of the
heirs are transmitted to them from the moment of the death of the decedent.

Not part of the inheritance

• When the object of the contract is not part of the inheritance, the prohibition does not
apply, even if delivery of such object is dependent upon the death of one of the
contracting parties (e.g. life insurance, reversion of donated property upon the death of
donee)
• If the right of the party over the thing is not by virtue of succession, but as a creditor, the
contract does not fall within the prohibition of Article 1348

Contrary to law or morals

• Contract is void if at the time it is entered into, the object is contrary to law or morals. The
law need not be penal in nature. It is enough that it be mandatory or prohibitive (A statute
requiring all debts in money to be paid in Philippine currency, a promissory note in dollars
is null and void, but does not defeat the creditor’s claim which shall be paid in pesos)
• The determination of morality depends on our sense of our/the courts sense of decency,
whether an act is in consonance with the respect due to society or is repugnant to it

Prestation of third party

• The prestation promised in a contract must be personal to the party. A person can obligate
only himself. He cannot obligate a 3rd person.
• In a contract in which the prestation of a 3rd person is promised, the 3rd person is not
bound, only the promissory is bound by the contract to use all means so that the 3 rd
person may perform the prestation.

Article 108, RPC

The action to demand restoration, reparation, and indemnification likewise descends to the heirs
of the person injured.

REYES VS. CA JULY 31, 1954

Facts: decedent Benedicto de los Reyes, before his death, sold properties to one of the heirs of
the executor. The heirs of the former claimed that the said properties should be part of the
inheritance. Trial Court declared the subject properties having been sold before the death was no
longer part of the inheritance.

Issue: whether the properties sold are part of the inheritance? (Void contract)
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Held: yes, the properties are part of the inheritance, according to the Civil Code, even these
properties sold by the decedent may still be the object of succession and would be part of the
estate and as much, the heirs may still be entitled to the subject properties. Such case may be
considered as a circumvention of the law as the forced heirs may be deprived of their rights to
their legitime.
The appealed decision is reversed and the deed of sale was annulled and the parcel of land
involved mere declared as pertaining to the estate of the decedent Benedicto de los Reyes.
(If the contract is void, the property still forms part of the inheritance in order not to prejudice
the heir)

LEON GUINTO VS SANTIAGO MEDINA OCTOBER 7, 1953

Facts: on October 3, 1941 Leon Guinto filed an action for forcible entry against Santiago Medina.
Guinto alleged that he has been in possession of the said land since 1934, and that on 1941 by
means of force and intimidation. Medina deprived him of his possession. Trial Court rendered
decision in favor of Guinto. While the case was on its original appeal Santiago died.

Issue: whether the liability of heirs may exceed the amount of inheritance?

Held: no, the heirs of the original defendants in this case has been merely substituted in his
place upon his death, their liability for damages (money debt) is only to the extent of the value
of the property that they might have received if any from him.

D. Opening of Succession

Article 777, NCC

Transmission of Successional Rights

• the language of the article is criticized by some commentators. Inasmuch as the death of a
person merely consolidates and renders immutable, in certain sense, rights which up to
that moment were nothing but mere expectancy. For before the death of the testator, the
law may change, the will of the testator may vary, and even circumstances may be
modified to such an extent that he who expected to receive property may be deprived of
it. When death supervenes, however, the will of the testator becomes immutable. The law
as to the succession can no longer be changed, disinheritance cannot be effected, and the
rights to the succession acquire a character of marked permanence.
• What the article really means is that the succession is opened by the death of the person
from whom the inheritance comes. Therefore, it should be understood as “the rights to the
succession of a person are transmitted from the moment of his death, and by virtue of
prior manifestations of his will or of cause predetermined by law.”

Death the determining point

• The moment of death is the determining point when the heirs acquire a definite right to
the inheritance, whether such right be pure or conditional.
• The right of the heirs to the property of the deceased vests in them even before judicial
declaration of their being heirs in the testate or intestate proceedings.
• It is immaterial whether a short or long period of time elapses between the death of the
predecessor and the entry in the possession of the properties of the inheritance, because
the right is always deemed to retroact to the moment of death.

Illustrations
• The right of the state to collect the inheritance tax accrues at the moment of death,
notwithstanding the postponement of the actual possession and enjoyment of the estate
by the heir, and the tax is based on the value of the property at that time, regardless of
any subsequent appreciation or depreciation.
• A bequest of land to the nearest male relative of the testator who would study for the
priesthood means the grantor’s nearest male relative at the time of his death and not any
indefinite time thereafter.
Possession of hereditary estate
• To the heir passes not only the right of ownership, but also the right of possession, as of
the moment of death of the predecessor. The possession of the hereditary property is
deemed transmitted to the heir without interruption and from the moment of the death of
the decedent in case the inheritance is accepted.
• While the hereditary estate is under administration, the heirs cannot compel the
administrator to deliver to them the property inherited.
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Elements for transmission
1. The express will of the testator, within the limits prescribed by the law, calling certain
persons to succeed him, or on the absence of a will, the provisions of the law prescribing
the presumed will of the document.
2. Death of the person whose succession is in question: A person is not made to succeed by
the mere fact of death of the predecessor for such will deny him the right to accept or
repudiate the inheritance.
3. The acceptance of the inheritance by the person called to the succession.

Presumption of Death
• Death is not limited to natural or physical demise, it includes presumed death occasioned
by prolonged legal absence.
• Under Article 390
o After the absence of 10 years, a person shall be presumed to be dead for the
purpose of opening his succession, but if he disappeared after the age of 75, an
absence of 5 years will be sufficient in order that his succession may be opened.
o The death is considered to have taken place on the last day of the period of
absence required by law.
• Under Article 391
o The disappearance of the persons enumerated therein is under circumstances
which give rise to the conviction or belief that they are victims of some catastrophe
or fatal event.
o The presumptive date is fixed on the very day of the occurrence of the event which
may have occasioned death.

Article 2263, NCC

Moment of Death
• The decisive fact which gives origin to the right of heirs, devisees and legatees is the
death of the decedent.
• The provisions of the new Code, relaxing the rigidity of the rules of the old Code regarding
proof or recognition of natural children, were held inapplicable to one claiming recognition
and a share in the state of the alleged natural father who died before the new Code want
into effect.

Article 2253, NCC

New rights created

• The article gives a retroactive effect to newly created rights, provided they do not
prejudice or impair any vested or acquired right.
• Successional rights granted in favor of illegitimate children cannot be given retroactive
effect and be made to apply to the estate of the deceased who died before the effectivity
of the new Civil Code, for the same would have the effect of impairing the vested rights of
another who is deemed to have become owner of property of the deceased upon the
latter’s death during the regime of the old Civil Code.

Article 533, NCC

Article 1347, NCC

Article 1461, NCC

Things with potential existence

• A valid sale may be made of a thing, which though not et actually in existence, is
reasonably certain to come into existence as the natural increment or usual incident of
something already in existence, and then belonging to the vendor, and the title will vest in
the buyer the moment the thing comes into existence.
• A man may sell property of which he is potentially and not actually possessed.
• One who sells something he does not yet own is bound by the sale when he acquires the
thing later.

Emptio rei speratae vs Emptio spei

EMPTIO REI SPERATAE EMPTIO SPEI
(purchase of an expected thing) (purchase of a hope or expectancy)
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 If the parties make the contract
depend upon the existence of the
thing, so that if the thing does not
come into existence the contract is
considered as not made and there is
no obligation to pay the prize. Such
contract is valid under the 2nd
paragraph of the article
If the parties intend the contract to
exist at all events so that the buyer
will have to pay the price even if the
thing does not actually come into the
existence, the contract is aleatory,
and the price should be paid even if
the thing does not come into
existence. Under the last paragraph
of the article, such contract is void.

Illustrations
• An agreement for the sale of property yet to be adjudicated by the court is valid and
binding.
• A sale of property to which the vendors did not have any title yet at the time of the
execution of the deed of sale.

Article 130, NCC

Article replaced by Article 84 of the Family Code

Article 132, NCC

Article 390, NCC

Presumption of Death; Judicial declaration not necessary

• The presumption of death is created by law, and arises without any necessity of a judicial
declaration.
• The presumption can be availed of in any action or proceedings; but there can be no
independent proceeding for the express purpose of securing a judicial declaration that a
person is presumptively dead, except for purposes of re-marriage under the Family Code.
• Such a judicial declaration does not add anything to the force of the presumption, which
will still be only prima facie and can be thrown by proof that the absentee is actually alive.

When death deemed to occur

• The presumption of death provided in the article arises from ordinary absence.
• The presumption is created, because it is different to conceive that a living person would
abandon persons and things for a long period of time without returning to his domicile or
sending news of himself.
• The death is presumed to have taken place on the last day of the period of absence
required by law.
• The period is to be computed from the same date as the period provided in Article 384.

Article 391, NCC

Presumptive death of missing persons

• The article establishes a declaration of presumptive death in case of qualified absence.
• The persons presumed dead herein cannot be considered as merely absentees; they are
more properly designated as missing persons.
• The disappearance is not under normal conditions, which would merely create a doubt as
to their existence, but under circumstances which give rise to the conviction or belief that
they are victims of some catastrophe or fatal event.
• The presumptive date of death is fixed on the very day of the occurrence of the event
from which death is presumed, and if such date cannot be fixed, the court determines the
middle of the period in which the event could have happened.

Loss of vessel or airplane

• These terms must be understood in their broad meanings. Vessels will include all
watercraft, and aeroplanes will include all aircraft, whether airplanes, balloons, zeppelins,
hydroplanes, space craft, etc.
• The los of the vessel must be during a sea voyage. This will include not only voyages in
the open sea but also passage along the mouths of rivers, canals, etc. in the course of
such voyage. Trips which are only in inland waters are not included.

Missing in war

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 • The term “war” is construed generally, but includes all military operations or undertakings
in armed fighting, and not limited to war as understood in international law. It is not
enough, however, that the disappearance of such persons be during wartime; it is
necessary that it be during military operations.
• The presumption applies not only to soldiers, but also to:
o Those who are employed by or render services to the armed forces (e.g. nurses,
doctors, strokers in warships, etc)
o Those who render voluntary service (e.g. guides, guerillas)
o Those who follow or stay with the armed forces (e.g. reporters, photographers, and
cameraman)
• In the German Code, the period necessary to give rise to the presumption of death must
be computed from the conclusion of peace or the actual end of the war, as there is a
possibility that the missing person might have been taken as a prisoner of war and still
alive.

In danger of death
• other circumstances include
o earthquakes
o fires
o explosions
o inundations
o dangerous expeditions
o cave-ins of mines
o volcanic eruptions
o landslides
• period of reckoning the 4-year period
o the death should be considered to have taken place on the day of the danger
o if the danger continues for several days, it is contended that the period should be
computed from the last day of such danger
o In cases of expeditions or similar ventures of which nothing is heard after it has
stated, the date when it should be completed, if favorably concluded, is taken into
account.

Article 84, FC

Present property
• The law permits donation propter nuptias of not more than 1/5 of the present property of
the donor spouse.
• If present property is given by anyone other than one of the future spouses, the amount
that can be given by donation propter nuptias is the same that can be given in ordinary
donation.

In excess of 1/5
• Article limits the donation propter nuptias between spouses when they agree on a regime
other than the absolute community of property, and the donation is in the marriage
settlement.
• If the regime adopted by the spouses is the absolute community of property, the limitation
is not applicable because all the property of the spouses become absolute community
property.
• In the marriage settlement excludes the property donated from the absolute community,
the limitation logically applies.

Basis of the law

• The law is based on the policy that no spouse should be allowed to take advantage of the
love or tender feelings of the other to acquire property from the latter (that’s why Article
87 prohibits donation between spouses during marriage)
• The rule is relaxed when donation is made before or at the time of marriage in a marriage
settlement, as a concession to custom or the practice of giving some property to the
spouses at the time of marriage.
• In view of the reason of the law, whether the donation is in a marriage or not, as long as it
is made in view of the marriage, the limitation to 1/5 of present property shall apply.

Donation of future property

• these donations take effect upon the death of the donor spouse
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 • it cannot be made in the marriage settlement but in a will or testament. Its limits are
governed by the rules of testamentary succession provided by the Civil Code.
• Since the will can be revoked by the testator at any time before his death, the donation
propter nuptias of future property may be so revoked.
• Persons other than the affianced parties cannot give donations propter nuptias of future
property (Article 761, NCC)

Article 86, FC

Revocation of donation propter nuptias

• Present article enumerates causes for the donor to revoke a donation propter nuptias that
has already taken effect. The action to revoke the donation, however, may be waived by
the donor.
• Some donations propter nuptias are revoked by operation of law, and the donor does not
have to bring an action for revocation, such as:
o When a subsequent marriage is contracted by one whose spouse has been declared
presumptively dead, if the donee had contracted the marriage in bad faith (Article
43)
o Donations made in the marriage settlement, if the marriage does not take place
(Article 81)
o If the donation is subject to a suspensive condition, and the condition does not take
place, in which case the donations does not take effect

Acts of ingratitude which are grounds for revoking donations

1. if the donee should commit some offense against the person, honor or property of the
donor, or of his wife or children under his parental authority
2. if the donee imputes the donor any criminal offense, or any act involving moral turpitude,
even though he should prove it, unless the crime or the act has been committed against
the donee himself, his wife or children under his authority
3. if the donee unduly refuses to support the donor when he is legally or morally bound to
give such support (Article 765, NCC)

Requisites for the transmission of successional rights

1. express will of the testator or provision of law
2. death of the person whose property is the subject of succession
3. acceptance of the inheritance

Acceptance and repudiation defined

• Acceptance of the inheritance: the act by which the person called to succeed by universal
title by the testator or by law manifests his will in making his own the universality of the
rights and obligations which are transmitted to him.
• Repudiation is the manifestation by such heir of his desire not to succeed to the said
universality

Acceptance necessary
• the heir is such by the mere fact that he is so designated in the will by the testator or he is
called by law to succeed. The right of succession is transmitted to him from the moment of
the death of the decedent. No person, however, can be forced to take any property
through inheritance.
• So long as the person called to the succession does not manifest his willingness to be an
heir, the inheritance remains in a condition of suspension. By the act of acceptance this
condition is completely altered, and the heir is deemed to have accepted the inheritance
from the death of the decedent.
• The acceptance of the inheritance is the confirmation of the institution of the heir, the
perfection of the right to succeed.

Article 1041, NCC

Voluntary acts
• the freedom to accept or repudiate the inheritance follows the principle that rights granted
by law may be waived, provided such waiver is not contrary to public interest or public
order or prejudicial to 3rd persons.

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 • Repudiation and acceptance – being essentially voluntary and free acts – violence,
intimidation, undue influence, error and deceit will defeat the effects of either. Articles in
the law of contracts on the effects of causes vitiating consent are applicable to them.

Partial acceptance
* Philippine jurisdiction permitted partial acceptance or repudiation. The heir in Philippine law is
not the continuation of the personality of the deceased. He stands on the same footing as a mere
legatee in the Civil Code. If the legatee may accept or repudiate partially, there is no reason why
the heir should not be allowed to do so. Creditors of the estate would not be prejudiced by partial

Article 1042

Retroactive Effect
• By the nature of things, the continuity of ownership of property should not suffer
interruption. When acceptance is made, the law makes it retroact to the moment of the
death of the decedent.
• By fiction of law, the will of the heir to take the inheritance is made simultaneous with the
death of the decedent.

Term or Condition
The total suppression of Article 990 of the old Civil Code does not mean the consequent
elimination of the express prohibition on acceptance with a term or condition, as the very nature
of transmission or property mortis causa argues against the validity of acceptance or repudiation
with a term or subject to a condition would be contrary to the fundamental principle of
succession. It would also be inconsistent with the irrevocable character of acceptance or
repudiation, provided for in Article 1054.

Article 1043

Prerequisite of acceptance
1. He must be certain of the death of the person from whom he is to inherit:
o The will of man is changeable. Even just before the moment of his death he may
change his mind. Until the death of the person whose inheritance as accepted or
repudiated, the person is not an heir either by the will of the deceased or by the
law.
o The person inheriting must survive the decedent and must have capacity to
succeed. The person who accepts or repudiates an inheritance from a living person
cannot know whether he will survive or predecease the decedent or whether he will
have the capacity to succeed in the latter’s succession.
2. The person must be certain of his rights to the inheritance before he can accept or
repudiate.

Where acceptance or repudiation is ineffective

• When he knows that the will in which he is instituted is null and void.
• When he is not sure whether there are other relatives nearer in degree.
• When he is not certain whether he has been instituted heir or not.

Article 1044

Capacity to accept
• Any person who has the free disposal of his property may accept or repudiate.
• Persons having the capacity to succeed but not having the capacity to dispose of their
property may not accept or repudiate. Their legal representatives may do so for them. (no
free disposal of his property)

Minors and incapacitated persons

• When judicial approval not required
o Generally, acceptance of the inheritance may be made by the parents or guardian
of minors or incapacitated persons without the need of judicial approval.
o Acceptance, where the act is purely beneficial to the minor or incapacitated person,
the intervention of the court is unnecessary.
• When judicial approval required
o Acceptance, where the institution, devise or legacy is subject to a charge or
condition to be performed by the minor or incapacitated beneficiary.
o Repudiation must always be judicially authorized.
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Institution of poor
• The persons designated by the testator to determine the beneficiaries in an institution of
the poor in general can only accept the inheritance; they have no power to repudiate.
• Individuals who may be selected as poor have the freedom to accept or repudiate the
property or portion that may be given to them.

Article 1045

Action by representatives
• The law has taken for granted that the acceptance by their representatives will always be
beneficial to the institutions, while the repudiation may not.
• Since these institutions may by their nature be of public interest, the law has required
judicial approval.

Article 1046

Public establishment
• The term refers to organizations which have their own social and public purpose, separate
from the mere manifestations of the governmental functions of the State.
• It does not refer to mere administrative organizations which do not have a separate
existence as a legal entity, inasmuch as these organizations find their legal
representatives of the State or the Government.
• It is indispensable that the organization must have a distinct public service to fulfill, and
performs successive acts to realize it, these are what make it similar to the natural or
juridical person, and thus endow it with capacity to succeed.

A provincial governor cannot be regarded as a public establishment and thus may accept and
receive a testamentary devise in trust without the previous approval of the central government.

Approval of Government
The approval required by the article must be given by the head of the department to which the
public establishment belongs or is subordinate.

Article 1047

Acceptance by wife
• Article 114 which provides that “the wife cannot, without the husband’s consent, acquire
any property by gratuitous title except from her ascendants, descendants, parents-in-law,
and collateral relatives within the fourth degree was left out from the Family Code, and
can be considered no longer in force. (A Filipina cannot be presumed that every donation
or legacy in her favor hides an infidelity on her part. Donations made to induce her to
commit marital infidelity may be prevented by the application of Article 1028 in relation of
Article 739).
• The married woman, this, can now freely accept inheritance without need for the
husband’s consent.

Article 1048

Article 1049

Article 1050

Tacit acceptance of inheritance

1. When heir sells, donates, or assigns his right: This is considered an acceptance
because it involves alienation, and no one can transmit anything that is not his own. When
he therefore, disposes of the same without express acceptance, it can necessarily be
inferred that he considers the property as his own.
2. When the heir renounces it for the benefit of one or more heirs
o The act of renunciation, being made in favor of only one or more, but not of all the
heirs indiscriminately, really involves a cession. It is an act of disposition.
o Even if the renunciation is made in favor of all, but such persons are not the ones
called by the law in case of intestacy, it will remain to be a cession, an act of
disposition.

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 3. When the renunciation is in favor of all heirs indiscriminately for consideration:
The repudiation made for a valuable considerations is not a renunciation at all. The law
considers renunciation with consideration as an acceptance, not only when made in favor
of the co-heirs, but also when in favor of substitutes, or of persons called to the
inheritance by virtue of intestate succession or the right of accretion.
4. Other acts of tacit acceptance
o When the heir demands partition of the inheritance
o When he performs such like acts which show the clear intention to accept
o Under Article 1057, a failure to signify acceptance or repudiation within 30 days
after an order of distribution by the probate court (shall be deemed accepted)

Acts not constituting acceptance

• Where the law expressly mentions cases from which acceptance may not be inferred
o Repudiation without consideration in favor of the persons to whom his share will
pass in the absence of the heir repudiating
o When the heir gratuitously renounces his part in favor of all the persons to whom
the share will pass by right of accretion, substitution, or by intestate succession.
• Where the acts which the heir has the right to perform without the character of an heir
o When an heir acts as administrator of the estate (where he may be obligated to
administer the property, pay debts, collect credits, bring suits, etc)
o Acts that the heir may perform in the interest of the firm, where he is a partner of
the deceased, or co-ownership, though they necessarily affect the property of the
deceased
o When the heir continues possessing the property of the deceased after the death of
the latter
• Acts of mere administration and preservation do not, by themselves, amount to
acceptance; as the property of the deceased must not be abandoned
o Keeping of documents
o Harvesting of fruits of the estate
o Deposit of jewels and other valuables in some institution for safekeeping
o The inventory of the property
o The repair of buildings, etc.

Article 1051

Formality of repudiation
• Repudiation must be in a public or authentic writing or one presented to the judge
• Act of repudiation is more solemn than the act of acceptance
o Repudiation makes the transmission of the right of succession ineffective, producing
thereby more violent and disturbing consequences which the law cannot permit by
mere implications or presumptions.
o Repudiation involves acts of disposition and alienation, acts which by their nature
require formalities.
o Publicity of repudiation is needed for the benefit of the creditors and the public
interest.
o Repudiation opens the way for other heirs, and it is necessary that this calling of
other heirs must be based on certainty.

Authentic instrument
• Authentic instrument refers to document distinct and apart from a public or
notarial instrument, as the Code could not have used the term “authentic” as a mere
synonym or surplusage.
• Authentic instrument refers to one whose genuineness is admitted or clearly
proved. It is sufficient that repudiation appear in writing in an indubitable manner.

Article 1052

Acceptance by creditors
• Repudiation affects the co-heirs and his creditors. His co-heirs will gratuitously receive
more property while his creditors will necessarily be prejudiced, thus the law choose to
favor the creditors.
• The acceptance shall benefit the creditor only insofar as it covers the amount of their
credits. The excess shall be adjudicated to the person to whom it may pertain under the
law.
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Requisites to entitle creditor to accept for the heir
1. There must be a repudiation by the heir-debtor in legal form, a repudiation valid in law
2. There must credits existing against the heir who repudiates (it is not necessary that there
be many creditors, one will suffice)
3. Judicial authorization must be obtained before the creditors may accept for the debtor
4. Act of repudiation prejudices the claims of the creditors.

When repudiation is not prejudicial to creditors

• When creditors become such after the repudiation.
• When the inheritance is useless to the heir who repudiates, in the sense that he
would receive nothing because the debts of the estate exceeds its assets.
• When the heir-debtor is solvent and has sufficient proportion of which the creditor
may recover what is due them.

Nature of creditor’s acceptance

• The acceptance of the creditors does not annul or revoke the repudiation made by the
heir.
• The repudiation is simply rescinded to an extent sufficient to protect the interest of the
creditors.

Article 1053

Article 1054

Article 1055

Heir in two capacities

• Repudiation of express will includes that of the presumed will: When an heir is
such by will and by law, and he repudiates the inheritance as a testamentary heir, he is
considered to have repudiated the inheritance also as legal heir. (The act of repudiation
reveals that the heir does not appreciate the will of the testator and thus does not deserve
to likewise become a succession in intestacy).
• Repudiation of the presumed will still leaves the express will open to respect:
When the heir repudiates as a legal heir, he may later on accept as a testamentary heir.
(This is by reason of delicacy, where a person may not desire to succeed by intestacy, but
willing to accept as testamentary heir in order not to contradict the will of the dead.
(X – A (heir), A died, can heirs of A inherit from X? – depends if A accepted or repudiated. If A did
not accept, it cannot be inferred that he repudiated. If he repudiated, the heirs cannot inherit. If
X represented as Compulsory Heir, can he accept as Voluntary Heir? – yes, as long as he does
not know that he is a Voluntary Heir.)

Article 1056

Irrevocability of acceptance
• Acceptance or repudiation, once made, affects either the perfection of rights in the heir or
the vesting of rights in others. To allow the heir to change his mind and revoke his
acceptance or repudiation would lead to confusion and serious results.
• Exceptions:
o When the acceptance or repudiation suffers from any of the vices which annul
consent (Article 1330, the vices which annul consent are mistake or error, violence,
intimidation, undue influence or fraud).
o When an unknown will appears.

Effect of mistake
• When error refers to the substance of the thing, the consent given has no
effect. (e.g. relative is alive; else, if dead, the consent is vitiated by mistake)
• When error refers to the principal conditions of the thing, the acceptance or
repudiation will likewise be without effect. The error must be based on facts and
circumstances which the heir could not have known notwithstanding due diligence on his
part. These are errors in the appraisement, errors arising from false hopes or fears, from
risks and other circumstances, occurring before the act of acceptance for repudiation.

Effect of violence or intimidation

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 • The act of repudiation or acceptance through violence or intimidation is without effect, as
consent is non-existent.
• Violence refers to the external acts imposed upon the heir to accept or repudiate.
• Intimidation works internally upon the mind of the heir forcing him to accept or repudiate.

Effect of fraud
• The fraud must be practiced by a third person (creditor, legatee, co-heir, or stranger)
• The fraud must be serious and must consist of insidious words or machinations without
which the heir would not have accepted or repudiated the inheritance.

Appearance of unknown will

• When the acceptance or repudiation may be impugned
o When the will institutes a person other than the one who has repudiated or
accepted (the person having no right in the inheritance cannot accept or repudiate
the same)
o If the will grants additional legacies or revokes some (the acceptance or repudiation
may be revoked as the acts were made in the absence of the new charges or where
the legacies are revoked)
• When the acceptance or repudiation may not be impugned
o When the unknown will only clarify doubtful clause
o When the unknown will modifies insignificant details of a previous one.

Other causes of revocation

• The acceptance or repudiation by a person who is not entitled to the
inheritance has no legal effect.
• When the institution depends
o Upon the fulfillment of a suspensive condition which is not realized
o Upon the birth of a posthumous child who is not born or is born dead

Article 1057

USON VS NEBRADA 92 PHIL 530

Facts: Faustino Nebrada upon hi death left 5 parcels of land and leaving his only legitimate heir,
Uson his wife. However, Uson claimed that upon Nebrada’s death, de Rosario a common-law wife
illegally took possession of the said parcel of land. Del Rosario claimed that before Nebrada’s
death, spouses executed a public document agreeing to separate as husband and wife and also
renouncing her right to inherit any other property that may be left by her husband upon his
death. Trial Court ruled in favor of Uson, therefore ordering del Rosario to restore the ownership
and possession of said lands.

Issue: whether the provisions of the NCC regarding the successional rights of illegitimate children
which were declared for the first time be given retroactive effect?

Held: No, such provision should not be given retroactive effect. The right of ownership of the
lawful wife of a decedent who had died before the NCC took effect became vested upon his
death and is so because of the imperative provision of the law which commands that the right of
succession are transmitted from the moment of death. The new right recognized by the NCC, in
favor of the illegitimate children of the deceased cannot be asserted to the impairment of the
vested right of the lawful wife over ht elands in dispute. While Article 2253 of the NCC provides
that the rights which were declared for the first time shall have retroactive effect even through
the event which gave rise to them may have occurred under the former legislation. Yet this is so
only when the new rights do not prejudice any vested or acquired rights of the same origin.

DE BORJA VS DE BORJA 46 SCRA 579

Facts: Francisco De Borja, upon the death of his wife, filed a petition for the probate of her will
and after probate, was appointed executor and administrator. Jose De Borja, thereon, was
appointed co-administrator of the testate estate of his mother while the widower allegedly took
into himself a second wife, Tasiana Ongsingco. Upon Francisco’s death, Tasiana instituted testate
proceedings and was appointed special administrator. The relationship between the children of
the first marriage and Tasiana has been plagued with several court suits and in order to put an
end to all these litigations a compromise agreement was entered by and between the heirs of
Francisco by the first marriage and the heirs of Francisco by the second marriage.

Issue: The doctrine in Guevarra vs Guevarra which held that he presentation of a will for probate
is mandatory and that the settlement and distribution of an estate on the basis of intestacy.
31
When the decedent left a will is against the law and public policy is not applicable when the clear
object of settlement was merely the conveyance by the heir of any and all their individual share
and interest, actual or eventual, in the estate of the decedent and not the distribution of the said
estate.

As a hereditary share in a decedent’s estate is transmitted or immediately from the moment of

death, there is no legal bar to a successor disposing his or her hereditary share immediately
after such death, even after the actual extent of such share is not yet determined until the
subsequent liquidation of the estate. Of course, the effect of such alienation is deemed limited to
what is ultimately adjudicated to vendor heir.

BONILLA VS BARCENA 71 SCRA 491

Facts: A civil action to quiet title over certain parcels of land was instituted by Fortunata Barcena.
A motion to dismiss the complaint was filed by the defendants on the ground that Fortunata is
dead therefore has no legal capacity to sue. Counsel for the plaintiff asked for the substitution of
her minor children and her husband. The Court, however, dismissed the case on the basis that a
dead person cannot be a real person in interest and has no legal personality to sue.

Issue: whether the heirs may be parties in interest who may substitute the deceased in an action
to quiet title over certain parcels of land?

Held: Article 777 of the Civil Code provides that he right to the succession are transmitted from
the moment of death of the decedent. From the moment of death of the decedent, the heirs
become the absolute owners of the property subject to the rights and obligations of the
decedent, and they cannot be deprived of their right thereto, except as provided for by the law.
The moment of death is the determining factor when the heirs acquire a definite right to the
inheritance, whether such right be pure or contingent. The right of the heirs to the property of
the deceased vest in them even before judicial declaration of their being heirs in the testate and
intestate proceedings.

When Fortunata died, her claim on right to the parcels of land in litigation was not extinguished
but was transmitted to her heirs upon her death. The heirs have acquired interest in the
properties in litigation and become parties in interest in the case. There is therefore no reason
for the court not to allow the substitution as they are now the real parties in interest in the case
at bar.

BOUGH VS MODESTO 47 OG 97 9 3013

Facts: On March 4, 1936 Bruno Modesto, ____ Bough and Restituto Anapol executed a private
document whereby Modesto agreed that he would share with Restituto Anapol and Bough
whatever property he might inherit from his deceased wife. It was provided in such document
that the properties were to be divided and proportioned 1/8 each provided that Restituto pay the
expense to be incurred in connection with the litigation that Modesto was facing. Bough and
Restituto instituted the present action to secure judgment ordering Modesto to divide the
properties left by his wife, in the manner and form provided in the private document. Modesto, in
his defense alleged that the ____ had failed to comply with the terms and conditions specified in
the contract and that the said contract was not contrary to law, morals and public policy.

Issue: whether the contract, the object of which is Modesto’s inheritance is valid and binding
between the parties?

Held: The contract is valid. It is well settled that rights by inheritance are acquired and
transmitted upon the death of the decedent. If this is so, it must necessarily follow that it is
perfectly legal for an heir to enter into a contract of the nature of the document in this case, the
understanding to be, of course, that the contract would be effective only if and when he is really
declared an heir and only as regards any property that might be adjudicated to him as such. It
cannot be said that the disputed contract deals and interferes with properties in Custodia legis
because the reasonable interpretation that must be given to it that contemplates and provides
for the partition only of such property as may be adjudicated to Modesto if when he is declared
to be an heir of his deceased wife, the claims of the partition to be made in due course, that is
through the probate court.

It is the present action that should not be considered strictly as one for partition but only as an
action intended to determine the right of the parties under the terms of the contract.

BORROMEO-HERRERA VS BORROMEO 152 SCRA 171

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Facts: Vito Borromeo, a widower and permanent resident of Cebu died without heirs but leaving
properties in Cebu. Jose Junguera filed with the CFI Cebu a petition for the probate of a one-page
document as the last will and testament left by said deceased, but the same was found to be a
forged document.

The testate proceedings was converted into an intestate proceeding as several parties filed their
claims alleging that they are the heirs of the intestate of Vito Borromeo. On April 10, 1969 the
trial court invoking Article 972 of the Civil Code issued an order declaring nine persons to the
exclusion of others as intestate heirs of Vito. The Court also ordered that the assets of Vito be
divided in 4/9 and 5/9 groups and distributed equally.

On April 25, 1969 Fortunato who had earlier claimed an heir under the forged will, filed a motion
praying that he be declared as one of the heirs of the deceased, alleging that he is an
illegitimate son and entitled to receive a legitime like all other forced heir. In his motion for
reconsideration, Fortunato attached a waiver of hereditary rights of 5 of the deceased heirs and
the latter having agreed to designate their share to the former.

Issue: whether hereditary rights may be waived before there has been acceptance or repudiation
of an inheritance which the heir intends to transfer.

Held: The prevailing jurisprudence on waiver of hereditary rights is that the properties included
in an existing inheritance cannot be considered as belonging to third persons with respect to the
heirs who by fiction of law continue the personality of t former. Nor does such properties have
the character of a future property because the heirs acquires a right to succeed from the
moment of death of the deceased until the heirs enter into possession of the hereditary property,
but the acceptance in any event acts form the moment of death in accordance with the provision
of the Civil Code. The right is vested although conditioned upon the adjudication of the
corresponding hereditary partition. The heirs therefore could waive their hereditary rights even if
the order to partition the estate was yet to be issued.

E. Kinds of Succession

Article 778, NCC: Succession may be:

1. Testamentay
2. legal or Intestate; or
3. Mixed

1. Testamentary

Article 779

Testamentary succession preferred

• One of the most fundamental principles in the law of succession is that the
will of the testator, expressed in the form required by the law and exercised within the
limits laid down by the law, must be recognized as the supreme law in the succession.
• Testamentary succession is preferred over intestate or legal succession.

2. Legal and Intestate

• When there is no valid testament expressing the decedent’s will, then his property must
be distributed according to the provisions of law on intestate or legal succession.
• These provisions will also take effect, even in the presence of a will, if such will does not
validly dispose of all the property of the deceased.

Article 960
(5. happening of a resolutory condition)

Even if will is inoperative, there may have been legal effects to the rights of others

Deceased without a will

• The most general and simplest form of intestate succession.
• The law gives the deceased the right to make his last will and testament. Failure by the
deceased to do so, the law enters and disposes of it for him by assigning it to his nearest
relatives, taking for granted that he would have made the same assignment if he had a
will.
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 • This excludes the cases when a person dies with a will that lacks the legal requisites or a
will the whereabouts of which are not known.

When will is void

A void will has no legal existence. A person who dies leaving a void will dies without a will. A will
can be said to be void if there exists any cause of disallowing it.

When will losses validity

• The difference between a void will and a will that later lost its validity lies in the fact that
the first refers to a will that has never been valid, that is null and void ab origine, ipso
facto, while the second refers to a valid will which later lost its validity.
• “Validity” must be interpreted as “efficacy”. A will, executed by a testator having full legal
capacity and under the conditions and requisites imposed by law, is valid and never
ceases to be such. It however may los its efficacy in a later time.
• “loss of validity” does not refer to a will revoked by a subsequent valid will, but a will
made ineffective by a second will without invalidating the first.

Will does not institute heir

• A will which does not contain an institution of an heir (taken generally, and including
devisees and legatees), as to the whole or part of the estate, alone does not invalidate the
will (See Article 841).
• Absence of institution of heirs includes cases where the institution of heirs is void.
• In such cases, the testamentary dispositions made in accordance with law shall be carried
out, and the remainder of the property shall be carried out, and the remainder of the
property shall pass to the legal heirs.

Will dispose of property partially

• Legal succession will take place only as to that part of which the testator has not disposed.
• It includes cases where the dispositions of certain property or portions do not become
effective because they are void according to law. (e.g. dispositions during testator’s last
illness in favor of a priest; see Article 1027)
• When the identity of the person designated as an heir, devisee, or legatee cannot be
determined, the property intended for such person must be distributed as in case of
intestacy.
• Dispositions according to Article 846 is void. (Article 846 provides “Every dispositions in
favor of an unknown person shall be void, unless by some event or circumstance his
identity becomes certain. However, a disposition in favor of a definite class or group of
persons shall be valid”.

Non-fulfillment of condition
• The condition referred to is suspensive and not resolutory, as suspensive conditions rise to
rights and his non-fulfillment prevents the acquisition of such rights by the persons
conditionally instituted. The property or portion which should have passed to them, if the
condition happened, is thus left in the sphere of intestate succession.
• Intestacy. When the event upon which a conditional legacy depends does not happen,
the legacy passes to the persons named by law to succeed the testator, i.e. legal or
intestate succession takes place as to the legacy.
• No intestacy. If a substitute has been appointed or the right of accretion exists between
the conditional heir or legatee or devisee and another, there will be no intestacy although
the suspensive conditions arise. The property or portion of the conditional heir who does
not succeed passes to the substitute or co-heir.

Predecease or repudiation
• Intestacy will not follow from the prior of the heir or his renunciation of the inheritance
o If the testator has provided for substitution or
o Where there is a co-heir in whose favor the right of accretion exists.

Incapacity of heir instituted

The instituted heir being incapable, the property assigned to him is left without any person to
inherit, unless the right of accretion or substitution obtains.

Other causes of intestacy

• Happening of the resolutory condition, which sets aside the institution of the heir, devisee
or legatee, and thus gives rise to intestate succession.
34
 • Upon the expiration of the term or period of the institution; when the heir, devisee or
legatee (under Article 885) is instituted up to and until a day certain.
• The non-compliance or the impossibility of complying with the will of the testator.

Preterition – the annulment of the institution of the heir, distribution through legal succession.

3. Mixed

Article 780

• Testamentary succession and intestate or legal succession are compatible with each
other.
• Mixed succession happens where there is testamentary succession as to the part validly
disposed of, and at the same time, a legal or intestate succession, as to the part not
validly disposed of, or to which no heir is designated by the testator.

There can be an heir, not a legatee or devisee – right of usufruct.

4. Contractual

• The marriage settlements, which affianced persons are authorized to execute before the
celebration of the marriage, stipulating conditions for the conjugal partnership with
respect to present and future property, provides for an exceptional case in which
succession may be conferred by a contract.
• The donation with respect to future property in the marriage settlements is in reality a
disposition mortis causa, but not executed in the form of a will. It constitutes, not only an
exception in the prohibition in Article 1347, but a real case of contractual succession.

Article 130

Article 1347

Article 754

Article 84, FC

TESTAMENTARY SUCCESSION

II. WILLS

A. Definition

Article 783

Definition of Will
• Roman law: The legal declaration if a man’s intentions, which he will to be performed
after his death.
• Popular sense: A disposition, made by a competent testator in the form prescribed by
law, of property over which he has legal power of disposition, which disposition is of such
nature as to take effect at the death of the testator.
• Generally accepted definition: A will is an instrument by which a person makes a
disposition of his property to take effect after his death, and which is, in its own nature,
ambulatory and revocable during his life. (This definition is criticized in other jurisdictions,
which recognize oral or nuncupative wills).
• Tolentino: A will is a personal, solemn, revocable and free act by which a capacitated
person disposes of his property and rights and declares or compiles with duties to take
effect after his death.

Non-dispositive Writings
• American law: Disposition of property is not an essential characteristic of a will.
o An instrument has been held valid as a will, which simply names an executor or
administrator of the estate, or merely provides for the payment of debts which the

35
 law would require the personal representative to pay even if the testator died
without a will is held similarly.
o A will may be limited to extra-patrimonial dispositions provided by law (e.g.
disposition of the patria potestas of the widow in case of remarriage; or the
acknowledgment of a natural child; or the form and manner of the funeral of the
testator).
o The dispositions, in some cases, may consist merely of moral advice, or directions
as to the conduct of the heirs and the education of the children (which have no
juridical importance).
• Philippine Civil Code: The concept of a will is limited to a disposition of property to take
effect upon and after death
o A will is a specie of conveyance whereby one person is permitted, with the
formalities prescribed by law to control to a certain degree the disposition of his
property, to take effect after his death.
o It is only when the will disposes of property either directly or indirectly, that it has to
be probated (See Article 838).
o When there is no disposition of property, although the instrument may be
considered as a will, it does not have to be probated, its dispositions which are
provided by law (e.g. patria potestas, acknowledgment of natural child) can be
given effect even without probating the will.

Exclusion of heir
• The law permits a testator to disinherit a compulsory heir for any of the
causes provided by law, and the disinheritance is expressly required to be made in a will
(See Article 916)
• A valid disinheritance is in effect a disposition of the property of the testator
in favor of those who would succeed in the absence of the disinherited heir.
• Unless the will is probated, the disinheritance cannot be given effect.

B. Characteristics

Article 783

Characteristics of Wills
1. It is a purely personal act
2. It is a free act, without violence, fraud or deceit (individual act)
3. It disposes of property
4. It is essentially revocable
5. It is formally executed (formal art/ solemn art)
6. The testator has testamentary capacity (essential requirement)
7. It is a unilateral act
8. It is an act mortis causa, or takes effect upon the death of the testator
9. It is a purely statutory right (constitutional)

Revocability: Up to the moment of death, the mind of the testator may still change, and
therefore, revoke what he has already expressed as his will and substitute therefor his new
wishes or desires, inasmuch as that which has been previously expressed has not yet taken
effect.

Not necessarily gratuitous: A will is not necessarily an act of liberality or generosity. The
inheritance may be so burdened with legacies that all the benefit to the heir is nullified. In some
cases, there may even be no intent of liberality, such as in legacies in payment of debt.

Article 839 (3), (4)

Article based on Rule 76 of the Rules of Court

Section 9, Rule 76: Grounds for disallowing will – the will shall be disallowed in any of
the following cases:
1. if not executed and attested as required by law;
2. if the testator was insane, or otherwise mentally incapable to make a will, at the time of its
execution;
3. if it was executed under duress, or the influence of fear, or threats ;
4. if it was procured by undue and improper pressure and influence, on the part of the
beneficiary, or of some other person for his benefit;

36
 5. if the signature of the testator was procured by fraud or trick, and he did not intend that
the instrument should be his will at the time of fixing his signature thereto.

Denial of probate
A will should not be disallowed on dubious grounds.

Article 828

Revocability of wills
• Revocability is an inseparable quality of every will. Wills by their nature are ambulatory
and operative until the death of the testator. It may be altered, revoked or superseded at
any time.
• A will may be revoked at pleasure. Revocation is an act of the mind, terminating the
potential capacity of the will to operate at the death of the testator, manifested by some
outward and visible act or sign, symbolic thereof.

Revocation and nullity distinguished

Revocation and nullity of wills have the same purpose of depriving a last will of legal effect.
1. Revocation
• An act of the testator
• Presupposes a valid act
• Takes place during the lifetime of the testator
• The testator cannot renounce the right to revoke
2. Nullity
• Proceeds from the law
• Inherent in the testament, be it an intrinsic or extrinsic defect
• Invoked after his death by his intestate or compulsory heirs
• Nullity of a will can be disregarded by the heirs through voluntary compliance therewith.

Article 796

Capacity to make a will

• The law presumes capacity to make a will
• Mere weakness of the mind or partial imbecility from disease of body or from age does not
render a person incapable of making a will.
• “Persons” as used herein means only natural persons. Corporations never leave orphans
or widows to mourn at their funeral, and probate courts have no jurisdiction over
corporate properties.

Spendthrifts
When a spendthrifts or prodigal is under the guardianship, he can make a will, there being no
disqualification provided by law.

Civil interdiction
A person under civil interdiction can make a will. He is disqualified for dispositions of property
only by act inter vivos but not by act mortis causa.

Article 797

Computation of age
• The law requires the testator to be 18 years of age or over
• The Anglo-American jurisprudence, in the absence of statutory provisions on the manner
of computation, sustains the view that the required age is reached at the commencement
of the day preceding the anniversary of the birthday.
• The Anglo-American __ should be followed in Philippine jurisprudence since the present law
on the capacity of the testators of Anglo-American origin, and the interpretation given in
the jurisdiction of origin should be observed here. This construction, further, is more in
accord with the liberal policy of the law to presume capacity to make a will.

Article 798

Article 777

Article 818

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Background of provision
• The Fuere Real (Ley 9, Tit. 6, Libro 3) allowed this kind of will between husband and wife, if
they have no children.
• The Partidas (Ley 35, Tit. 11, Partida 5) prohibited the same because it might lead to the
commission of parricide.
• Article 669 of the Civil Code was enacted, embodying the provisions of the Partidas, and
making the prohibition more extensive.
• To eliminate all doubts and to establish a definite policy, Article 818 was inserted in the
New Civil Code.

Concept of Joint and Mutual Wills

1. A Joint Will is one where the same instrument is made the will of two or more persons
and is jointly signed by them. Such wills are usually executed to make testamentary
dispositions of joint property.
2. Mutual Wills are separate wills of two persons, which are reciprocal in their provisions.
3. A Will that its both joint and mutual is one executed jointly by two or more persons,
the provisions of which are reciprocal, and which shows on its face that the devises are
made on in consideration of the other.

Reasons for prohibition of a joint will

1. A will is a purely personal and unilateral act, and this is defeated if two or more persons
make their wills in the same instrument.
2. it is contrary to the revocable character of a will (if one testator revokes his will by burning
the instrument, the other testator would have no document left containing his
testamentary disposition.
3. A joint will, if mutual or reciprocal, may expose a testator to undue influence, and may
even tempt one of the testators to kill the other.

Scope of prohibition
• The real prohibition in the Code refers to the execution of a joint will, or the
expression by two or more testators of their wills in a single document or text and by one
act.
• The law does not invalidate two distinct wills, independent of each other which are
written on the same sheet of paper, one on each side, or even on the same side but
separated by a line between.

Article 784

Prohibited Delegation
• It is the making of the disposition, the expression of the will of the testator that is not
subject to delegation. The testator cannot substitute the mind or will of another for his
own.
• The more mechanical act of drafting the will may be done by a third person, inasmuch as
such act does not constitute a delegation of the will or disposition.

Article 785

Reason for provision

The matters mentioned are testamentary in nature, and constitute expressions of the will or
disposition of the testator. Being so, they cannot be delegated to a third person.

Article 786

No delegation
• There is no delegation of the will or testamentary disposition in the cases contemplated by
the article.
• The testator has expressed his will by leaving specific property or sums of money in
general to specified classes or causes.
• The third person entrusted to make the distribution does not make any disposition, but
simply carries out details in the execution of the testamentary disposition made by the
testator himself in his will.

Article 787

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Reason for the provision
To delegate to a third person the power to determine whether a testamentary disposition is
operative is in effect delegating the power to make the testamentary disposition; which is not
permitted.

Effect of prohibited disposition

• It is not only the delegation which is void
• The testamentary disposition, whose effectivity will depend upon the determination of the
third person, is itself void.

C. Interpretation of Wills

Article 788

Interpretation favoring validity

• Substance over form: Substance rather than form must be regarded, and the
instrument should receive the most favorable construction to accomplish the purpose
intended by the testator. The object of the construction of a will is to sustain it if legally
possible and not to seek flaws in the instrument and declare it invalid.
• Testator’s Intent: The intention of the testator is the controlling factor in the juridical
relations arising from the will. It is thus necessary to interpret that intention rationally and
in such manner as not to render ineffective the testamentary disposition.
• Presumption: The presumption is that the testator intended a lawful thing, and courts
will not seek an interpretation that will nullify his will and any part thereof.
• Interpretation that will give effect to the will: If the language used is reasonably
susceptible to 2 different interpretations, one which will defeat and the other which will
sustain the testamentary disposition, the doubt must be resolved in favor of the
construction which will give effect to the will, rather than the one which will defeat it.
• When language ambiguous: When the language of the testamentary disposition is plain
and unambiguous, courts are not permitted to wrest it from its natural meaning in order to
save it from nullity.

Article 789

Kinds of ambiguity in a will

1. Patent or extrinsic ambiguity: one which appears upon the face of the instrument
2. Latent or intrinsic ambiguity: one which cannot be seen from a mere perusal or reading of
the will, but which appears only upon consideration of extrinsic circumstances.

When latent or intrinsic ambiguity arise

1. when the will names a person as the beneficiary of a gift, or a thing as the subject matter
of such gift, and there are two or more persons that answer to such name, or two or more
things that meet such description.
2. where there is a misdescription of the beneficiary or of the thing given as a gift.

Parol or extrinsic evidence

• the Philippine Code, in the present article, does not make any distinction between patent
and latent ambiguities insofar as the admissibility of parol or extrinsic evidence is
concerned.
• Extrinsic evidence is admissible to show the situation of the testator and all the relevant
facts and circumstances surrounding him at the time of the making of the will, for the
purpose of explaining or resolving a patent ambiguity.
• Evidence of the state of his property, the condition of his family, etc., besides the evidence
of the circumstances surrounding the testator, may be introduced for the court to view the
matter in the same light and the point of view as the testator himself.

Testator’s declaration
• the extrinsic evidence cannot include oral declarations of the testator. Such oral
declarations are inadmissible whether made before or after the execution of the will.
• The reason for the inadmissibility of oral declaration is that the lips of the testators have
been sealed by death and therefore can no longer deny or affirm the truth of what
witnesses may say he declared. To admit such would create confusion and give rise to
false claims.
• By implication, written declarations made by the testator outside the will, are admissible.

39
Article 790

Intent of testator paramount

• The supreme law in succession is the intent of the testator.
• All rules of construction are designated to ascertain and give effect to that intention.
• It is only when the intention of the testator is contrary to law, morals, or public policy that
it cannot be given effect.

Literal meaning
• Respect for the will of the testator constitutes the principal basis of the rules which the law
prescribes for the correct interpretation of all the clauses of the will.
• Words and provisions written in the will must be plainly construed in order to avoid a
violation of his intention and real purpose.
• Questions in court arising in connection with the execution of and compliance with the
testamentary provisions shall be adjusted in harmony with the plain and literal meaning of
the language of the testator, except where it clearly appears that his intention was other
than that actually expressed.
• A translation submitted to the court, made in accordance with the idiomatic usage of the
language from which it is made, will prevail over a literal translation which, while word for
word correct, is not idiomatic.

Technical sense of the words

• A distinction is made in interpretation is often made between a will drafted by skilled
testamentary draftsmen (e.g. lawyers) and a will prepared by persons who have no
knowledge of the law.
• Words found in the first are to be construed with some strictness, emphasis being placed
upon their accepted technical meaning.
• Words found in the second are to be interpreted liberally with reference to their popular
meaning, or the meaning which they commonly have to a person in the situation of the
one who used them.

Interpretation of holographic wills

• Holographic wills, being usually prepared by one who is not learned in the law, construed
more liberally than ones drawn by an expert.
• The words and phrases employed in such instruments should be interpreted according to
their ordinary acceptation, even though they may have different technical meaning, where
the circumstances surrounding the execution of the will indicate that the testator so
intended.

Article 791

Effectivity of all parts

• Effect should, if possible, be given to all words, clauses, and provisions of the will, if they
are not inconsistent with each other or with the general intent of the whole will taken in its
entirety.
• It is presumed that every word or clause was intended by the testator to have some
meaning. No word or clause should be rejected if it is at all possible to give a reasonable
effect.
• No part of the will should be discarded unless in conflict with some other part, in which
case that part will be enforce which expresses the intention of the testator.
• Where 2 constructions are possible, the one disregarding a word or clause of the will, and
the other giving effect to the will as a whole, the latter interpretation must be followed.

Prevention of intestacy
• Where a will has been executed, the reasonable and natural presumption is that the
testator intends to dispose of all his property.
• The presumption against the intestacy is so strong that courts will adopt any reasonable
construction of a will in order to avoid it. Courts will give the broadest meaning to the
words of bequest when it is necessary to do so in order to prevent intestacy.

Article 792

Article 793
40
Observations on article
• The will of the person transmits only properly owned by him at the time of the making so
such will; properly acquired thereafter is transmitted only when it expressly appears in the
will that such is his intention.
• This is contrary to principles expressed in other provisions of the Code. It contravenes the
concepts of heir and of inheritance in the Code.
• The grafting of the provision (taken from the Coe of Civil Procedure, which is of American
extraction), should be construed (to save the law from being inconsistent with itself) as
referring only to devisees and legacies, for these are the testamentary disposition
contemplated in the Code of Civil Procedure.
• Even with the present construction, the present article conflicts with Article 930. the
conflict is irreconcilable.

Article 794

Intention of testator
• When the testator does not state the extent of the interest he gives in the legatee or
devisee or the property transmitted, it is understood that his whole interest passes, no
more and no less.
• But when the testator, under Article 794, may manifest his intention to convey a less
interest, and under Article 929, he may expressly convey a larger interest. In such case,
the intention of the testator will be followed.

Article 930

Things belonging to another

• Article refers to a legacy or devise of a determinable and specific thing totally belonging to
a stranger at the time the will was made.
• If the testator did not know at the time the will was made that the thing belonged to
another, the legacy or device is void.
• The ignorance of the testator is presumed by law.

Subsequent change of ownership

• if the testator did not know, at the time of making the will, that the thing belonged to
another, but subsequently it I is acquired either by himself or by an heir, devisee or
legatee, the devise or legacy becomes valid.
• If the subsequent change of ownership transferred the thing to the very person to whom it
was being given as a devise or legacy, and by lucrative title, or to another third person,
the legacy is void.

SOLLA VS. ASCUETA 49 PHIL 33

Facts: upon the death of Maria Solla, she left a will which provides for the following:
“I also desire and order that there be given in the way legacies to my brothers and sisters,
to my nephews and distributed in the following manner xx. I desire and hereby name Leandro
Serrano, my grandson, as my universal heir xx, and I desire him to comply with the obligation to
give and deliver to the parish priest xx a sufficient sum of money necessary for a yearly novena,
ordinary masses for the repose of my soul and those of my parents, husband and children and
other relatives. I repeat and insist that my heirs shall execute and comply with this request
without fail, and at the hour of his death he will insist that his heirs comply with all that I have
ordered.”

The possession of the property left by Maria was immediately taken by Leandro Serrano and
continued in possession until the latter’s death. During the lifetime of Serrano, no claim was
made by the legatees in said will. Hence, the trial court ordered the executor of Leandro, Simeon
Serrano, to deliver to the petitioners their respective shares as a legacy.

Issue: whether the court may depart from the strict wordings of the will to give effect the true
intention of the testator.

Held: where the testator’s intention is manifested from the context of the will and surrounding
circumstance, but is obscure by inept and inaccurate modes of expression, the language will be
subordinated to the intention, and in order to give effect to such intention, the court may depart
from the strict wording and read a word in a phrase in a sense different from the strict wording

41
on that which is ordinarily attributed to it and for such purpose alter the language of the will,
such as restricting its application on supplying the omitted word or phrase.

It clearly appears that it was Maria Solla’s intention and the letter should comply with her pious
orders and that she did not mean her orders concerning her legacies.

D. Law governing form

Compliance with Statute

• The legislature has the power the power to prescribe the formalities to be observed in the
execution of a will, and by doing so does not interfere with the rights of the individual to
dispose of his property. These technical mandates must be complied with. It is not the
intention of the testator or attesting witnesses that matter but the intention of the
legislature.
o When a person fails to satisfy the statutory requirements as to execution the
document will be denied probate.
o When a person omits to perform some prescribed act, although the omission may
be accidental and contrary to his intentions, the instrument cannot stand as a valid
will.
• All the formalities required by the stature are of equal importance and the courts have no
discretion to dispense with them, or supply a defect caused by a failure to comply with
some of them.
• The rule that the intention of the testator must govern, in the interpretation of wills, does
not apply to their execution.
• Parol or extrinsic evidence is not admissible to show that a decedent intended to execute
his will according to all the formalities prescribed by statute.

Objective of formalities
Liberalization of the manner of the execution of wills with the end in view of giving the testator
more freedom in expressing his last wishes but with sufficient safeguards and restrictions to
prevent the commission of fraud and the exercise of undue and improper pressure and influence
upon the testator.

1. As to time of execution

Article 795, NCC

Law on formal validity

• The law governing the execution and effect of wills may be amended by the legislature
subsequent to the death of the testator. This, however, does not affect the operation of
the will.
• As vested rights are not permitted to be taken away without compensation and due
process of law, it follows of necessity that if the will or any gift in it was invalid when the
testator died, no subsequent state can cure the defect.
• If the will was valid, or any gift in it took effect on the death of the testator, the rights of
the devisee or legatee cannot be divested by any law passed afterwards, changing the
requirements for wills, or for the validity of any gifts by them.
• As there is no vested right in the heirs before the death of the testator, cannot constitute a
deprivation of property without due process of law.
• Given in the present article, however, the validity of the execution of a will is controlled by
the statute enacted subsequent to the execution and prior to the death of the testator,
changing the rules respecting the form of the instrument, etc., has no retrospective effect.

Law on intrinsic validity

• Intestate and testamentary succession, both with respect to the order of succession and to
the amount of successional rights and to the intrinsic validity of the testamentary
provisions, shall be regulated by the law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country
wherein said property may be found.
• The place of execution has no effect whatsoever upon the validity of the provisions of the
will.
• The law may be changed after the will has already been made, and before the death of
the testator. In such case, the law at the time of testator’s death will apply. It is the law at
the time when the succession opens which must determine the intrinsic validity of the
provisions of the will, because it is at this time that the rights are transmitted to the heirs,
42
 devisees, or legatees. The principle is embodied in the transitory provisions of the present
Code (Article 2263).

Foreign law has to be proven

Foreign laws have to be proven like any other fact in dispute. They may not be taken judicial
notice of except when said laws are already within the actual knowledge of the court and they
have been actually ruled upon in other cases before it and none of the parties concerned do not
claim otherwise.

2. As to place of execution

Article 17

Execution of contracts
• A contract executed in a foreign state should be tested as to its formal validity by the laws
of that country, and not by the provisions of the Civil Code.
• Matters bearing upon the execution, interpretation, and validity of a contract are
determined by the law of the place where the contract is made.

Performance and enforcement

• Matters connected with the performance of contracts are regulated by the law prevailing
the place of performance.
• Remedies, admissibility of evidence, and the statute of limitations, depend upon the law of
the place where the action is brought.

Foreign judgments
Litigants by mutual agreement cannot compel the courts to approve of their actions or permit
the personal relations of citizens of the Philippines to be affected by the decrees of foreign courts
in a manner which Philippine government believes to be contrary to public order and good
morals.

Validity and effect of obligations

• The Code fails to mention which shall govern the validity and effects of the obligations
• Flore’s doctrince:
o The designated by the parties shall be applied
o If there is no stipulation on the matter, and the parties are of the same nationality,
their national law shall be applied
o If still not so, the law of the place of perfection of the obligation shall govern its
essence and nature, and the law of the place of the performance shall govern its
fulfillment.
o If these places are not specified and they cannot be deducted from the nature and
circumstances of the obligation, then the law of the domicile of the passive subject
shall apply.

Article 810

Holographic Will defined

• One executed by the testator himself, writing, dating and signing it by his own hand,
without the attestation of any third persons.
• In the execution of the holographic will, the testator may either divulge its contents or
keep them secret as he may please, and thus, he may execute what other codes call
public, notarial, mystic, secret or closed will.

Advantages and disadvantages

Advantages (Manresa, Sanchez
Roman,Planiol, Valverde):
a. it is simple and easy to make,
convenient for those who have no
means to employ lawyers or notaries, or
who are timid and want to read and re-
read their wills before signing them, or
who have only very little property to
dispose of.
Disadvantages (Scaevola, Buron,
Morales, Comas, and Borarull):
a. there is no guaranty as to the capacity
of the testator
b. there is no protection against
violence, intimidation, or undue
influence, which may never be known in
case of immediate death of the testator.

b. it induces foreigners in this c. it may not faithfully express the will of

43
 jurisdiction to set down their last wishes. the testator due to faulty expressions.

c. it guarantees the absolute secrecy of d. it can be easily falsified by expert

the testamentary dispositions forgers, because no witness or public
official intervenes in its execution.

e. for the same reason, it can be easily

concealed.

When testator is blind

• Valverde and Caslan: A blind person cannot make a holographic will, even if he can write
with ordinary characters
• De Buen: There being no prohibition in the law, a blind person can make such will if he has
the general testamentary capacity.
The view of De Buen is more acceptable, according to Tolentino.

Material to be used
The material on which the will is written is not important

Form and intent

• There is no particular form required by law for holographic wills. They may be in any form,
but the intent to dispose mortis causa must appear clearly in the context.
• The intention to make a will may appear expressly or it may be inferred from the terms of
the instrument.

Letters as wills
• A letter which is not for the sole and special purpose of manifesting the last will of the
writer cannot be considered as a holographic will.
• If the writer of the letter addressing himself to a friend, expresses his apprehension of
death, and disposes of his property in the same act, there is a valid holographic will, if it is
written, dated, and signed by the writer. (it is not a letter containing a will, but a will in the
form of a letter).
• If the writer of the letter does not make any definite testamentary disposition, but merely
states that he is contemplating to leave his properties to another person, or is thinking of
instituting a particular individual as his heir, there is no will, but merely a project.

Written entirely by testator

• The most essential and characteristic requisite of a holographic will is that it must be
entirely written by the hand of the testator.
• In case of insertion
o If the insertion was made after the execution of the will, but without the consent of
the testator, such insertion is considered as not written, because the validity of the
will cannot be defeated by the malice or caprice of a third person.
o If the insertion after the execution of the will was with the consent of the testator,
the will remains valid but the insertion is void.
o If the insertion after the execution is validated by the testator by his signature
thereon, then the insertion becomes part of the will, and the entire will become
void, because of failure to comply with the requirement that it must be wholly
written by the testator.
o If the insertion made by a third person is made contemporaneous to the execution
of the will, then the will is void because it is not written entirely by the testator.

Date of instrument
• The law does not require that the will be completely executed on a single
day, at one time, and in the same ink, because the unity of the act is not a requisite for
this form of wills.
• The exact date, month, and year on which the will was made must be
indicated therein, otherwise it is void for want of an essential requisite.
• The day and month may be indicated by implication, so long as the
designation leaves no room for doubt as to the exact date (e.g. Christmas Day)
• The validity of a holographic will is defeated by the fact that part of the date
is printed.

False or erroneous date

44
 • A simple involuntary mistake as to the correct date, when there are other statements or
material elements in the will which fix the date with certainty, does not invalidate the will.
• The court may allow proof of the true date, provided that such proof, which may even be
extrinsic, can have a basis in the will itself.
• The intentional statement of a false date, or a voluntary falsity as to the date of the will, is
equivalent to the inexistence of the date, and nullifies the will, because he true date of
execution cannot be determined on the will itself.
• A date written subsequent to the writing of the will, which is the date on which the will was
actually written, is not a false date. One making a holographic will, incomplete for want of
date, may subsequently complete it by dating it properly.

Signature of the testator

• The signature required for holographic wills is not the simple writing of the name and
surname of the testator.
• It is his name written by him in his usual and habitual manner.
• The signature as habitually written cannot be substituted by a symbol or a seal.
• A mere error in the spelling of the name does not invalidate the signature.

Location for signature

The signature must be at the end of the will (inferred from Article 812)

Time of signing
• The signature must be affixed by the testator on the day the will is written and dated: but
the will can be signed even long after the testamentary disposition have been written.
• There must be a correlation between the signing and the date. The date must indicate on
which the will was perfected, and a date placed on the will long after the signing must be
considered a false date.

Witness to holographic will

Signatures of witnesses to a holographic will does not invalidate the will, but will be disregarded
as mere surplusage.

Article 815

Compliance with the Code

• The article follows the general rule expressed in Article 17, NCC
• The Code did not mean to invalidate the will of a Filipino, executed in a foreign country,
when it is made in conformity with our law and not in conformity with the law of the place
of execution. It cannot be assumed that the Code places the Filipino citizen in a worse
position than the alien in relation to Philippine Laws.
• Article 819 provides an exception to the rule contained in Article 815. Filipinos cannot
execute a valid joint will, even in a foreign country.

Article 816

Rules of Court
• Under the Rules of Court, wills proved and allowed in a foreign country, according to the
laws of such country, may be allowed, filed and recorded by proper CFI (RTC) in the
Philippines.
• The probate of the will in the foreign state or country must be proved in the same manner
as any other foreign judgment.

Article 817

Alien’s Will in the Philippines

If an alien executes a will in the Philippines, not in conformity with our law, but in conformity with
the law of his own state or country, the will can be probated in the Philippines.

Law on intrinsic Validity

• The provisions of Article 815 to 817 refer to the formal validity of wills executed by
persons outside their own state or country.
• With respect to the intrinsic validity of the provisions of the will, Article 16, NCC provides
that the national law of the deceased shall apply.
• The place of execution does not affect the intrinsic validity of the contents of the will.

45
Article 818

Article 819

Exception to the general rule

• General rule: A will may be made by a Filipino, who is abroad, in accordance with the
formalities prescribed by the law in the country where the will is executed (Articles 17 and
815).
• Exception: A joint will is against the public policy of the Philippines.

IN RE WILL OF REV. ABADIA 50 OG#9, P 4185

Facts: September 6, 1923, father Sanchio Abadia, parish priest of Talisay executed a document
purporting to be his last will and testament. He died on October 2, 1946 leaving Andrea Enriquez
as legatee to his properties with an estimated value of P8,000 who thereafter filed a petition to
probate the will. Some cousins and nephew of the deceased filed an opposition.

During the hearings, the said will was known to be a holographic will, which was prohibited at the
time it was executed. However, Enriquez contended that, the NCC should apply wherein it
permits holographic wills because such was the law enforced at the time of death of Father
Abadia.

Issue: whether the validity of the form of the will depend on the law enforced at the time it was
presented for probate?

Held: The validity of a will as to form is to be judged not by the law enforce at the time of the
testator’s death or at the time the supposed will is presented in the court for probate or when
the petition was decided by the court but at the time when the instrument was executed.

By party of reasoning, when one executes a will which is invalid for failure to obscure and follow
the legal requirements at the time of its execution then upon his death he should be regarded
and declared as having died intestate, and his heirs will then inherit by intestate succession; and
no subsequent law with liberal requirements as to execution should be allowed to validate a
defective will and thereby divest the heirs of their vested rights in the estate by intestate
succession. The general rule is that the legislative cannot validate void wills.

FLEUMER VS HIX 54 PHIL 610

Facts: Fleumer alleged that the will was executed in Elkins, West Virginia by Hix who was
resident of that place and was governed by the laws of West Virginia. The laws of a foreign
jurisdiction do not prove themselves in our courts. The Courts are not authorized to take judicial
notice of the laws of the various states of American Union. Such laws must be proved as facts.

Issue: whether the Courts of this jurisdiction are authorized to take judicial notice of the laws of
the various states so the American Union?

Held: The law of foreign jurisdiction do not prove themselves in our courts. The Courts of the
Philippines do not authorize to take judicial notice of the laws of the various states of the
American Union, such laws must be proved as facts. In the case at bar, these requirements of the
law were not met. No evidence was introduced to show that the extract from the laws of West
Virginia was in force at the time alleged will was executed, in addition, the due execution of the
will has not established.

ESTATE OF GIBERSON 48 OG #7 PAGE 2657

Facts: An action to probate document was filed alleging it was the will of Illinois citizen Giberson
and was executed in California.

Giberson died in UST concentration Camp in Manila. Spring, son of Giberson opposed the
proceeding claiming that it is void because it does not reflect the true intent of the deceased and
the same was not executed according to the law. (California law requires that the will must be
probated in the place of execution before it be probate din the Philippines.)

Issue: whether the will of Giberson can be probated in the Philippines despite the fact that there
was no showing that the will was probated in the place of execution?

46
Held: The will can be probated in the Philippines due to the fact that person has a right to
dispose of his property after death through a will and he is not compelled to execute the will in
the Philippines. He can do so in his own country or anywhere else provided it complies with the
laws of the place where it was executed. The Rules in Civil Procedure respects the right of a
testator to make his will anywhere he likes and the same can be probated here. It is a
substantive right and cannot be negated by rules.

DELA CERNA VS POTOT 12 SCRA 576

Facts: Spouses Bernabe de la Cerna and Gervalia Rebaca, executed a joint will and testament in
the local dialect, giving parcels of land including fruits to Manuela Rebaca, being married to
Potot. De la Cerna died and said will was submitted to the court for probate. Upon the death of
Gervalia, another petition for probate of the same was filed but was denied on the ground that it
is a joint will. The CA reversed the ruling of the trial court.

Issue: whether the testamentary heirs of Gervalia have rights even if the will was jointly made?

Held: No, the testamentary heirs of Gervalia shall have no successional rights.

The SC ruled that where a husband and wife executed a joint will and upon the death of the
husband said will was admitted for probate by a final decree of the court although erroneous,
and the wife dies late, it is held that said first decree of probate affects only the husband but
cannot affect the estate of his wife, considering that a joint will being prohibited by law, the
estate of a wife should pass upon her death, to her intestate heirs and not to the testamentary
heirs, unless some other valid will is shown to exist in favor to the latter or unless the
testamentary heirs is the only heir to the wife.

ESTATE OF RODRIGUEZ 46 OG # 2, P 584

Facts: Several relatives of the deceased Bernabe Rodriguez opposed the filing of a petition for
the probate of Bernabe’s will by his spouse Mrtina Aruniega. Among the grounds of opposition
are: (a) that the will executed was a complaint or non commandants of the same in the
instrument as that of the will of Martina, creating reciprocal benefits of each spouse. Such will is
prohibited in the Civil Code and (b) that the testator was under pressure and influence exerted
by Martina.

Issue: whether the will of Bernabe maybe allowed probate.

Held: The will maybe probated. Disease as a physical weakness alone does not affect the mental
capacity of the testator, unless it is of such a nature as to render him incapable of knowing what
he is doing. There was no showing that the testator’s decease or physical weakness had affected
him in that nature. Although two testators who are husband and wife, instituted the other as the
Universal heir in their respective wills are not conjoint because they are made in different
instrument. They are therefore valid.

E. Law governing content

1. As to time

Article 2263

2. As to successional rights, etc

Article 16

Law on succession
• Point of view
o Execution of wills: The formalities of execution of will are generally governed by
the law of the place of execution (Article 17[1])
o Distribution of properties: The distribution of the estate is governed by the law
of the nation of the deceased (Article 16)
• Question on the distribution of the estate
o The order of succession in cases of intestacy
o The intrinsic validity of the testamentary provisions in case of testate succession
o The extent or amount of property which each heir is entitled to inherit
o The capacity of certain heirs to succeed
o Questions of pretirition, disinheritance, and collation

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Reason of the unity of the applicable law
Capistrano: With regard to succession there is only one will, express in testamentary and
presumed in intestate succession. The oneness and universality of the inheritance cannot be
divided or broken up merely because of the different countries where properties of the estate are
situated.

Applicability of foreign law

• The second paragraph applies only when a legal or testamentary succession has taken
place in the Philippines in accordance with the law of the Philippines. The foreign law is
consulted only in regard to the order of succession or the extent of the successional rights.
• The second paragraph can only be invoked when the deceased was vested with a
descendible interest in property within jurisdiction of the Philippines.
• The intrinsic validity of the provisions of the will of a foreigner who dies in the Philippines
is to be determined by the laws of his own state or country, and not by those of the
Philippines.

Proof of foreign law

When a foreign law is involved, it must be alleged and proved.

ESTATE OF CHRISTENSEN 61 OG # 46 P 7302

Facts: Edward Christensen, American Citizen residing in Davao was the manager of the Mindanao
Estates. During his stay, he met Bernada Compredora, wherein they lived as husband and wife
without being married. During their cohabitation for 30 years, they bore 2 daughters namely
Maria Lucy and Maria Helen. When Edward died he left a will containing: 1) Maria Lucy is his only
daughter to which he gave all his properties and income; 2) Maria Helen, who is not her
daughter, but uses his surname and alleged to be the offspring of Bernada with another man,
giving her trust fund of P3,600.00; 3) Bernada was given P1,000.00 and 4) Adolfo Cruz Aznan as
executor.

Maria Helen and Bernada opposed the said will, wherein the former contended that she was a
natural child and therefore must be entitled to the said properties, the latter however contended
that although they were not married, they cohabited for 30 years, therefore she should be given
½ of the said properties because of co-ownership.

Issue: whether Bernada is entitled to ½ of the state under the law on co-ownership?

Held: No, Bernada is not entitled to ½ of the properties. Before the Civil Code went into
operation, the court already decided, that when a man and a woman, not suffering from any
impediment to contract marriage, lived together as husband and wife, an informal civil
partnership exist, and each of them has an equal interest in the properties acquired during said
union and is entitled to participate therein said properties were the product of their joint effort.

In the case at bar, aside from the observation of the trial court that Bernada was an illiterate
woman, there appears no evidence to prove her contributions or participation in the acquisition
of the properties involved, therefore following the aforecited ruling the claim of ½ of the
properties cannot be granted. Even assuming for the sake of argument that this case falls under
the provisions of Article 144 of the Civil Code which recognizes the parties as co-owners of the
properties acquired after the act concerned and to no other, for such law cannot be given
retroactive effect to govern those already possessed before August 30, 1950.

ESTATE OF AMOS BELLIS 20 SCRA 358

Facts: Amos Bellis was a citizen of Texas. By his 1st wife, Mary Mallen, whom he divorced and
has 5 children, by his 2nd wife, Violet whom he survived 3 legitimate children and he had
illegitimate children. Amos executed a will in the Philippines to which he gave: 1) $240,000 to his
first wife; 2) $40,000 to each of his 3 illegitimate children and 3) all his remaining properties will
be given to his legitimate children. When Amos died, his will was to be probated in the CFI of
Manila. However, the capacity to succeed is governed by the national law of the decedent or
under the law wherein it is executed.

Issue: whether the capacity to succeed is governed by the national law of the decedent or under
the law where it is executed?

Held: Capacity to succeed shall be governed by the laws of the decedent. The decedent’s
national law governs the order of succession, the amount of successional rights, the intrinsic
validity of the provision of the will and capacity to succeed. Whatever public policy and good
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customs may be involved in our system of legitimes congress has intended to extend the same
to the succession of foreign nationals.

CAYETANO VS LEONIDES 129 SCRA 524 (page 9)

III. TESTAMENTARY CAPACITY AND INTENT

A. who may make a will?

Article 796

Article 797

Article 798

Article 799

Soundness of mind
• The testator must be of sound mind at the time of the execution of the will
• To be of sound mind means that he is able to execute his will with an understanding of the
nature of the act (e.g. the recollection of the property to be disposed of, of the person who
sits or who might necessarily be the subjects of his bounty, and the manner in which it is
to be distributed among them)
• Soundness of mind, such as will enable a person, under the statute, to make a will, has
relation to the business transacted, namely, the disposition of his property by will. The
instrument propounded is the spontaneous act of a person understanding its nature and
consequence.
• Mere weakness of the mind or partial imbecility from disease of body or from age, by
itself, does not render a person incapable of making a will.

Elements of testamentary capacity

1. The testator must have the capacity to understand the nature and effect of his act;
i.e. he must know that the instrument is an act mortis causa which will dispose of his
property upon his death.
2. He must have sufficient recollection of his properties; he must comprehend their
kind and character, and be able to designate them.
3. He must be able to remember the natural objects of his bounty
4. He must have sufficient mental ability to make a disposition of his property among
the objects of his bounty according to some plan which he has formed in his mind.

Objects of testator’s bounty

• It does not mean that he should know and recognize every distant relative
who is entitled to inherit from him under the existing rules of descent.
• Refers to near relations of the testator, those who are the natural objects of
his bounty.

Property of testator
• It does not mean that he must have information in his mind at one time (as persons with
large means rarely know precisely what property they own, and the nature and present
conditions pertaining to each)
• When not lacking in testamentary capacity: An actual mistake of the testator as to the
extent of his property.
• When lacking in testamentary capacity: A testator of such feeble mental condition that the
cannot furnish his attorney details concerning his property, or one so dull and obtuse as
not to know that he owned property.

Effects of infirmity
• Sickness, old age, __, senile debility, blindness, nor poor memory, nor the fact that
somebody had to guide the testator’s hand in order that he might sign, is not by itself
sufficient to establish a presumption of lack of testamentary capacity, when there is
sufficient evidence of the mental sanity of the testator at the time of the execution of the
will.
• The absence of testamentary capacity is not equivalent to insanity. It is enough that the
mental condition be such that there is a want of understanding of the nature and
consequences of the disposition of the will. Actual insanity need not exist.
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 • The law does not deal with the causes of unsoundness of mind (e.g. mental disease, senile
dementia, fevers, injuries, drugs, intoxicants, etc.)
• It is the effect of the causes which the law must deal regardless of what the actual cause
may be, and it is the quantity or degree of the effect which the law must determine to
arrive at a decision on the presence or absence of testamentary capacity.

Senile dementia
• Dementia exists where a mind once sound has become weakened or decayed, and when
caused by old age, it is Senile Demetia.
• “Senility” appearing in a death certificate as the cause of death means “infirmity in old
age, trouble proceeding from old age,” and is distinct from “senile dementia” which is the
“peculiar decay of the mental faculties whereby the person afflicted is reduced to second
childhood.”
• To constitute complete senile dementia, there must be such failure of the mind as to
deprive the testator of intelligent action.
• No presumption of incapacity arises merely because of advanced years. Infirmities of old
age (weakness of body and irritability of temper), nor physical condition due to old age
(dryness of skin, emaciated body and trembling lips, and failure to answer greetings
correctly) are not incompatible with competency.
• One of the surest indications of the approach of senile decay is that of loss of memory,
and where such loss of memory is such as to prevent the testator from recalling the value
and extent of his properties, and the persons who would be the natural objects of his
bounty.

Insane delusions
• An insane delusion is a false belief for which there is no foundation in reason, and which
would be incredible to the same person if of sound mind, and of which its victim cannot be
disposed by either evidence or argument.
• It is a belief which no rational man, putting himself as nearly as may be in the same
situation of the insane person, can possibly conceive of himself as entertaining.
• Not every case insane delusion will render one incapable of making a will.
• A testator may have delusions regarding matters which do not affect or concern his
testamentary act and which have no influence upon the disposition which he makes of his
estate.
• The testamentary disposition is void when the delusion touches the subject the matter or
the will: when it pertains to the (1) property, (2) the beneficiaries or those who would
succeed to the property if the will were not made.
• A belief in spiritualism, Christian Science, or any other unusual religious doctrine, or a
belief in witchcraft is not proof of insanity, and does not render a testator incapable of
making a will, unless his mind is so controlled by his peculiar views as to prevent the
exercise of a rational judgment relative to the disposition of his property.

Deaf, dumb, blind

• Modern rule: Neither blindness, nor deafness and dumbness, nor all of them combined,
will alone incapacitate a person to perform the testamentary act (in view of modern
science and invention that allow these to acquire understanding and to communicate their
desires).
• What is essential is that person afflicted knew the nature of his act he was performing and
expressed his desires so that they were fully understood.
• Article 807 recognizes the capacity of a deaf-mute to make a will, even if he does not
know how to read and write.
• Article 808 accepts the capacity of a blind testator to make an ordinary or attested will.
• A blind man with a sound disposing mind can certainly make a holographic will, if he can
write (as he may have learned to write perfectly well before he became blind).

Eccentricities and prejudices

• An eccentric person may make a valid will, notwithstanding the peculiarity of his conduct.
• Even a considerable or marked degree of eccentricity of conduct, appearance, care of
health, wearing apparel, table manners, or language, may not incapacitate a person to
make a will.
• The existence of strong passions and prejudices on the part of the testator is not
inconsistent with testamentary capacity.
• But where the prejudice borders upon an insane delusion, or the testator at the time of
making the will labors under extraordinary excitement or stress of emotion, he may be
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 rendered devoid of the power to realize the natural objects of his bounty, the extent of his
property, and the nature of the business at hand.

Drugs, intoxicants
• The use of intoxicants, or drugs, does not mean a complete loss of understanding.
• But a person, by superabundance of alcoholic drinks or the excessive use of drugs may be
so mentally obscured, that for the time being, he cannot make a valid will (for
understanding is lacking)
• However, the continued use of intoxicants and drugs may so deaden the mentality that a
lack of mental capacity arise in the testator, and thus in this sense destroy the
testamentary capacity of the testator.

Determination of sound mind

• The soundness of the mind of the testator must be determined at the time of the
execution of the will.
• The nullity of the will executed when the testator was of unsound mind is not cured by the
mere fact that the testator later recovers reason and fails to revoke his will. The will
should be republished by the testator after he has recovered reason.

Article 800

Burden of proof
• The obligation to prove mental incapacity of the testator rests upon those who allege such
incapacity.
• Conclusive proof of the mental incapacity and the evident lack of reason and judgment at
the time of the execution of the will must be shown before a will may be set aside on the
ground of the mental incapacity of the testator.
• If the evidence be such as to show the existence of insanity in the testator generally, so
that in the absence of further proof the presumption of sanity would be rebutted, it may
still be shown, in support of the will, that it was made during a lucid interval.
• Evidence of the testator’s insanity before or recently after the execution of the will gives
rise to a presumption of insanity at the time of execution, it would be indispensable to the
validity of the will to show that it was executed during a lucid interval or after the malady
has ceased.
• If the proof of insanity consists in the degree or judgment of a competent court declaring
the testator to be non compos mentis, and placing him under guardianship, the
presumption is and continues until there is judgment or decree by a competent court
declaring his restoration and that he is incompetent to make a valid will (This may be
rebutted by proof showing his insanity at the time of executing the will, even if the
guardianship is repealed).

No presumption of insanity
• The presumption of insanity does not arise when the malady under which the testator
labored was in the nature either accidental or temporary, nor is it raised by the sole fact
the testator committed suicide soon after making the will.
• No presumption of insanity from mere delirium (the direct result of a bodily disease,
generally abates with the fever producing it, and wholly ceases upon the restoration to
health.
• Incapacity will not be presumed from the mere fact that the father and the only child of
the deceased are both insane.

Evidence of mental condition

• The evidence should be permitted to take a wide range in order that all facts may be
brought out which will determine the question of testamentary capacity.
• The evidence of those present at the execution of the will and of the attending physician is
to be relied upon.
• The testimony of subscribing witnesses to a will concerning the testator’s mental condition
is entitled to great weight when they are truthful and intelligent.
• The mere professional speculation of the attending physician should not prevail over the
positive testimony of several apparently credible witnesses whose testimony does not in
itself seem unreasonable.
• In cases the witnesses are not subscribing or attesting witnesses, they are required to give
the reason or ground for their opinion as to the sanity or insanity of the testator.

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Article 801

Capacity at execution
• The capacity of the person who leaves a will is to be determined as of the time of the
execution of the will
• The subsequent change in the capacity does not invalidate the will, as long as the testator
was qualified to make the will at the time it was made.
• When the testator did not have capacity at the time of execution, the subsequent
acquisition of capacity does not validate the will.

Article 802
(Taken from Article 905, par 2, of the French Code)

Article 803
(Taken from Article 21 of the California Probate Code)

B. supervening incapacity

Article 801

IV. SOLEMNITIES OF WILLS

A. Kinds of Wills
1. The ordinary or attested will
2. Holographic or handwritten will

Noncupative wills (one not written but orally declared by the testator in his last illness, in
contemplation of death and before sufficient number of competent witnesses) is not recognized
in Philippine laws.

Article 804

Common requirements
Requirements apply to both attested and the holographic wills

Must be in writing
• In a holographic will, it must necessarily be written by the hand of the testator himself
• In an ordinary or attested will
o It is immaterial who performs the mechanical act of writing the will, so long as the
testator signs it or has somebody sign his name in his presence
o It may be written out or printed, or partly written and partly printed, engraved or
lithographed.

Language known to testator

• The language or dialect used in the will must be known to the testator
• When a will is executed in a certain province or locality there arises a
presumption that the testator knew the dialect so used, in the absence of evidence to the
contrary

Proof of knowledge
• There is no statutory requirements that the will should express that the testator knows the
language or dialect used therein. It is a fact which may be established by extrinsic
evidence or proof aliunde.
• Failure of the witnesses to testify that the testator knew the language in which the will is
written does not of itself suffice to give the conclusion that this important requirement has
not been complied with

Attestation clause
• The attestation clause of an ordinary will does not have to be written in a language or
dialect known to the testator
• The language used in the attestation clause does not even have to be known to the
witnesses. It should, however, be translated to them.
• The clause is not part of the testamentary disposition

Article 810
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B. Notarial Wills

1. General Requirements

Article 804

SUROZA VS HONDADO 110 SCRA 388

2. Specific Requirements

Article 805

Object of solemnities surrounding the execution of wills

• To close the door against bad faith and fraud
• To avoid substitution of wills and testaments, and
• To guaranty their truth and authenticity

Interpretation of requisites
• The laws on the solemnities should be interpreted to attain the primordial ends
• But one must not lose sight of the fact that it is not the object of the law to restrain and
curtail the exercise of the right to make a will

Requisites of ordinary wills

1. It must be signed at the end thereof by the testator himself or by the testator’s name
written by another person in his presence and by his express direction.
2. It must be attested and subscribed by 3 or more credible witnesses in the presence of the
testator and of each other
3. Each and every page of the will must be numbered correlatively in letters placed o the
upper part of each page.
4. Each and every page must be signed by the testator or by the person requested by him to
write his name, and by the instrumental witnesses, in the presence of each other, on the
left margin.
5. it must contain an attestation clause
6. It must be acknowledged before a notary public by the testator and the witnesses.

Signed by the testator

• The usual and the most unequivocal method of signing is for the testator to write
his name in full, but this is by no means indispensable.
• Signing is making a sign, token, or emblem (which depends upon the custom of the
time and place, and on the habit or whim of the individual). The material thing is that the
testator made the mark to authenticate the writing as his will, and whatever he puts on for
it for that purpose will suffice.

Sufficient signature
• Any complete sign or design made by the testator upon the material on which the will is
written with the intention that it shall, as a symbol stand for or represent the testator as
the written name would do, is as sufficient a signing as is the writing of the signature in
full.
• A signature by mark will be sufficient, even if at the time of placing it the testator knew
how to write and was able to do so.

Place for signature

• The law expressly requires the will to be subscribed at the end thereof by the testator or
by his name written by another person in his presence and by his express direction.
• Its purpose is not merely to express that the instrument is completed but also to prevent
any opportunity for fraud or interpolations between the testamentary dispositions and the
signature.
• The position of the signature at the end of the will furnishes in itself intrinsic evidence of
the finality or completion

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