1.

Discuss the concept of succession and distinguish it

(succession) from inheritance.

Art. 774 defines succession as a mode of acquisition by

virtue of which, property, rights and obligations, to the
extent of the value of the inheritance of a person, are
transmitted through his death, to another or others either
by his will or by operation of law. On the other hand, Art.
776 and 781 state that inheritance includes not only the
property, transmissible rights and obligations not
extinguished and existing at the time of a person’s death,
but also includes those which have accrued thereto since the
opening of the succession.
Succession is the mode by which the inheritance is
transmitted to another. Inheritance is a part of succession
and succession consists of inheritance, heirs, devisees and
legatees, among others.

2. Intestate or legal heirs are classified into two (2)

groups, namely, those who inherit by their own right, and
those who inherit by the right of representation. Explain
each.

Intestate or legal heirs who inherit by their own right are

those heirs who succeed or inherit by order of intestate
succession as provided for in the Civil Code. They are the
compulsory heirs who survive the decedent.
Legal heirs who predeceased the decedent are succeeded by
their descendants who are raised by fiction of law to the
place and degree of the person represented and acquires the
right which the latter would have if he were living or could
have inherited. Representation arises only in cases of
incapacity and pre-decease of a compulsory heir.

3.What is a will?
Art. 783 defines a will as an act whereby a person is
permitted, with the formalities prescribed by law, to
control to a certain degree the disposition of his estate,
to take effect after his death.

4. What are the characteristics of a will?

The characteristics of a will are the following: 1) that it

is a personal act; 2) it is a free act, without violence,
fraud or deceit; 3) it disposes of property; 4) it is
essentially revocable; 5) it is formally executed; 6) the
testator has testamentary capacity; 7) it is a unilateral
act; and 8) it is an act mortis causa, or takes effect after
the death of the testator.
5. There are two kinds of ambiguity in a will. What are
those and explain each.

There are two kind s of ambiguity in a will: 1)patent

or extrinsic ambiguity, and 2) latent or intrinsic
ambiguity. A patent or extrinsic ambiguity is which appears
upon the face of the instrument and may be explained by
construction of settled legal principles, while a latent or
intrinsic ambiguity is one which cannot be seen from a mere
perusal or reading of the will, but which appears only upon
consideration of parol or extrinsic circumstances and may be
explained by admission of parol or extrinsic evidences.

6. Articles 796, 797 & 798 enumerate the 4 elements of

explain each.

The elements of testamentary capacity are:

1)that the testator is a natural person and not juridical
one (Art. 796).
1)that the testator is not prohibited by law to make a will
(Art. 796), in other words, those who have the capacity to
make a will in accordance with the provisions of the law,
2)that the testator is at least 18 years of age (Art. 797),
because at this age an individual is generally no longer
subject to fraud, influence or insidious machinations.
3)and that the testator be of “sound mind” at the time
of the execution of the will (Art. 798), “soundness of
mind” being present when the testator knows the NATURE of
the estate to be disposed of, the PROPER OBJECTS of his
BOUNTY, and the character of the TESTAMENTARY ACT. (Art.
799).
Alternative answer:
4 elements of testamentary capacity:
1. The teststor must have the mental capacity to understand
the nature and effect of his act; that is, he must know that
the instrument is an act of mortis causa which will dispose
of his property upon his death;
2. He must have sufficient recollection of his properties;
that is, 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 hid bounty
according to some plan which he has formed in his mind.
7. The law requires that the testator must be of sound mind
at the time of the execution of the will. Explain this
requirement.

Art. 799 states that to be of sound mind, it is not

necessary that the testator be in full possession of all his
reasoning faculties, or that his mind be wholly unbroken,
unimpaired or unshattered by disease injury or other cause.
It shall be sufficient if the testator was able at the time
of making the will to know the nature of the estate to be
disposed of, the proper objects of his bounty, and the
character of the testamentary act.
To have mental capacity, the testator must have the ability
to know: (1) the nature/extent of property; (2) the natural
objects of her property; (3) the disposition that her will
is making; and (4) the ability to connect all of
these elements together to form a coherent plan.

8. In Lee v. Tambago, the Supreme Court explained the

reasons for the stringent formalities prescribed by law in
the execution of the will. Cite the reason of the High
Court.

The Supreme Court said that the law provides for certain
formalities that must be followed in the execution of wills.
The object of solemnities surrounding the execution of wills
is to close the door on bad faith and fraud, to avoid
substitution of wills and testaments and to guarantee their
truth and authenticity.

9. In addition to the common requisite mentioned in Art.

804, what are the requirements for notarial will?

Art. 805. Every will, other than a holographic will, must be

subscribed at the end thereof by the testator himself or by
the testator’s name written by some other person in his
presence, and by his express direction, and attested and
subscribed by three or more credible witnesses in the
presence of the testator and of one another.
The testator or the person requested by him to write his
name and the instrumental witnesses of the will, shall also
sign, as aforesaid, each and every page thereof, except the
last, on the left margin, and all the pages shall be
numbered correlatively in letters placed on the upper part
of each page.
The attestation shall state the number of pages used upon
which the will is written, and the fact that the testator
signed the will and every page thereof, or caused some other
person to write his name, under his express direction, in
the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages
thereof in the presence of the testator and of one another.
If the attestation clause is in a language not known
to the witnesses, it shall be interpreted to them.

10. Discuss the difference between Notarial Will and

Holographic Will?

A notarial will must be attested and subscribed and signed

by at least three credible witnesses in the presence of the
testator and of one another, it must have an attestation
clause, each page must be signed by the instrumental
witnesses and the testator and numbered correlatively in
letters in the upper part of the will and it must be
acknowledged before a notary public by the testator and the
witnesses.
A holographic will, on the other hand, is entirely written,
dated, and signed by the hand of the testator himself, and
is subject to no other form, and may be made in and out of
the Philippines and need not be witnessed.

11. In holographic will, how do you prove the signature and

genuineness of the handwriting? Art. 811

In Art. 811, in the probate of a holographic will, it shall

be necessary that at least one witness who knows the
handwriting and signature of the testator explicitly declare
that the will and the signature are in the handwriting of
the testator. If the will is contested, at least three of
such with witnesses shall be required.
In the absence of any competent witness referred to in the
preceding paragraph, and if the court deems it necessary,
expert testimony may be resorted to.

12. What is incorporation by reference?

In Art. 827, it is stated that if a will, executed as

required by the Code, incorporates into itself by reference
any document or paper, such document or paper shall not be
considered a part of the will unless the following
requisites are present:
The document or paper referred to in the will must be in
existence at the time of the execution of the will;
The will must clearly describe and identify the same stating
among other things the number of pages thereof;
It must be identified by clear and satisfactory proof as the
document or paper referred to therein; and
It must be signed by the testator and the witnesses on each
and every page, except in case of voluminous books of
account or inventories.

13. Discuss the revocability of will.

Art. 828 states that a will may be revoked by the testator

at any time before his death. Any waiver or restriction of
this right is void.
Essentially, the inseparable quality of a will is its
revocability anytime during the lifetime of the testator. A
will by nature is ambulatory and inoperative till the death
of the testator.

14. Discuss the difference between revocation and nullity of

will.

Both revocation and nullity have the common purpose of

depriving a last will of legal effect. But they differ on
the following aspects: 1) Revocation is by act of the
testator, while nullity proceeds from law; 2) Revocation
presupposes a valid act, while nullity is inherent in the
testament, be it an extrinsic or intrinsic defect;
3)Revocation takes place during the lifetime of the
testator, while nullity is invoked after his death by his
intestate or compulsory heirs; 4)The testator cannot
renounce the right to revoke, while the nullity of a will
can be disregarded by the heirs through voluntary compliance
therewith.

15. Discuss the principle of dependent relative revocation.

The established rule of dependent relative revocation is

that where the act of destruction is connected with the
making of another will so as fairly to raise the inference
that the testator meant the revocation of the old to depend
upon the efficacy of the new disposition intended to be
substituted, the revocation will be conditional and
dependent upon the efficacy of the new disposition; and if,
for any reason, the new will intended to be made as a
substitute is inoperative, the revocation fails and the
original will remain in full force. It must appear that the
revocation is dependent upon the valid execution of a new
will.
16. Discuss implied revocation.

Where there are merely inconsistencies between two wills,

but no revoking clause, it has been held in the common law
that upon the destruction of the second will the first was
revived automatically, regardless of the intention of the
testator, provided the first will has been preserved,
undestroyed and uncancelled.

17. Explain the concept of institution of heir.

It is an inherent right of the testator to name the person

or persons he wished to bequeath the net hereditary estate.
Art. 840 states that the institution of an heir is an act by
virtue of which a testator designates in his will the person
or persons who are to succeed him in his property and
transmissible rights and obligations.

18. Is institution of heir necessary for the validity of the

will? Explain. (Art. 841)

The institution of an heir is not necessary for the will to

be valid, or the omission of an institution invalidates it.
Art. 841 states that a will shall be valid even though it
should not contain an institution of an heir or even though
the person so instituted should not accept the inheritance
or should be incapacitated to succeed.
In such case, the testamentary dispositions made in
accordance with law shall be complied with and the remainder
of the estate shall pass to the legal heirs.

19. In relation to Art. 854, explain the concept of

Preterition and cite its requisites.

Preterition is the total omission of a compulsory heir in

the inheritance. It consist in the silence of the testator
with regard to a compulsory heir, omitting him in the
testament, either by not mentioning him at all, or by not
giving him anything in the hereditary property but without
expressly disinheriting him, even if he is mentioned in the
will in the latter case.
The requisites of preterition are:
1)that there is a total omission;
2)that the person omitted is a compulsory heir in the direct
line; and
3)the compulsory heir omitted survive the testator.
20. Distinguish Preterition from Disinheritance.

Preterition exists when a compulsory is omitted from the

inheritance, either by not giving him anything in the
hereditary property without expressly disinheriting him or
by not mentioning him at all. On the other hand,
disinheritance is the act by which the testator, for a just
cause, deprives a compulsory heir of his right to the
legitime. It is a testamentary disposition by which a person
is deprived of, or excluded from, the inheritance to which
he has a right.
Disinheritance:
1) express;
2) voluntary;
3) there is legal cause;
4) heir is totally excluded from inheritance, if not
lawfully made, restored to his legitime.
Preterition –
1) tacit;
2) presumption is, involuntary;
3) mere oversight or mistake;
4) heir gets not only his legitime but also his share in
the free portion not subject to devises/legacies.

21. Discuss the concept of substitution. Can it

(Substitution) be extinguished? Explain.

Substitution, as defined in Art. 857 is the appointment of

another heir so that he may enter into the inheritance in
default of the heir originally instituted. It is the act by
which the testator designates the person or persons to take
the place of the heir or heirs instituted.
Substitution may be extinguished on the following instances:
1)by the nullity of the will;
2)by the annulment of institution of heir;
3)by the death of the substitute before the testator;
4)when the substitute himself is incapacitated to succeed
the testator;
5)when the substitute repudiates or renounces the
inheritance;
6)when the substitution is subject to a condition upon the
renunciation of the instituted heir and substitute
predeceased the instituted heir.
22. Explain the concept of Legitime. What are the steps to
determine the same?

In Art. 886 legitime is that part of the testator’s property

which he cannot dispose of because the law has reserved it
for certain heirs who are, therefore, called compulsory
heirs.
Art. 908. To determine the legitime , the value of the
property left at the death of the testator shall be
considered, deducting all debts and charges, which shall not
include those imposed in the will.
To the net value of the hereditary estate, shall be added
the value of all donations by the testator that are subject
to collation, at the time he made them.
Steps to Determine Legitime:
1)determination of the value of property which remains at
the time of the testator’s death;
2)determination of the obligations, debts, and charges which
have to be paid out or deducted from the value of the
property thus left;
3)the determination of the difference between the assets and
liabilities, giving rise to the net hereditary estate;
4) the addition to the net value thus found, of the value,
at the time they were made, of donations subject to
collation;
5) the determination of the amount of the legitime by
getting from the total thus found the portion that the law
provides as the legitime of each respective compulsory heir.

23. Compulsory heirs are classified into 3 types. Enumerate

and discuss each.

Compulsory heirs may be classified into:

1)primary –those who have precedence over and exclude to
other compulsory heirs;
2) secondary – those who succeed only in the absence of the
primary heirs;
3) concurring – those who succeed together with the primary
or the secondary compulsory heirs

24. Under Art. 909, donations given to the children shall be

charged to their legitime. Under what concept? Explain

Under the concept of collation and imputation, the donations

given to the children shall be charged to their legitime.
Collation is the addition of the value of donations made by
the testator, to either the forced heirs or to strangers
during his lifetime, to the hereditary estate. The purpose
of collation is to secure equality among the compulsory
heirs in so far as is possible, and to determine the free
portion, after finding the legitime, so that inofficious
donations may be reduced. After determining the legitime and
free portion of the hereditary estate, the donations shall
be imputed to and charged against the corresponding portion
of the estate, in the case of the children, their legitime.

25. Explain the concept of disinheritance, cite its

requisites and how can it be effected?

Disinheritance is the act by which the testator ,for a just

cause, deprives a compulsory heir of his right to the
legitime. It is a testamentary disposition by which a person
is deprived of, or excluded from, the inheritance to which
he has a right.
Requisites:
1)that the heir disinherited must be designated by name or
in such manner as to leave no room for doubt as to who is
intended;
2)that the disinheritance be for a cause designated by the
law;
3)that it is made in a will;
4)that it be made expressly, stating the cause in the will
itself;
5)that the cause must be certain and true, and must be
proved by the interested heirs if the person disinherited
should deny it;
6)that it must be unconditional; and
7)it must be total.

26. State Articles 774, 775, 776, 777, 778, 779, 780, 781 &
782.

Art. 774. Succession is a mode of acquisition by virtue of

which the property, rights and obligations to the extent of
the value of the inheritance, of a person are transmitted
through his death to another person or others by his will or
by operation of law.
Art 775. In this Title, “decedent” is the general term
applied to the person whose property is transmitted through
succession, whether or not he left a will. If he left a
will, he is also called the testator.

Art. 776. Inheritance includes all the property, rights and

obligations of a person which are not extinguished by his
death.

Art. 777. The rights to the succession are transmitted from

the moment of the death of the decedent.
Art. 778. Succession may be:
1) Testamentary
2) legal or intestate;or
3) Mixed

Art. 779 Testamentary succession is that which results from

a designation of an heir, made in a will executed in the
form prescribed by law.

Art. 780. Mixed succession is that effected partly by will

and partly by operation of law.

Art. 781. The inheritance of a person includes not only the

property and the transmissible rights and obligations
existing at the time of his death, but also those which have
accrued thereto since the opening of the succession.

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

either by the provision of a will or by operation of law.
Devisees and legatees are persons to whom gifts of real
and personal property are respectively given by virtue of a
will.

27. State Articles 793, 887, 888, 892 872 & 904.

Art. 793. Property acquired after the making of a will shall

only pass thereby, as if the testator had possessed it at
the time of making the will, should it expressly appear by
the will that such was his intention.

Art. 887. The following are compulsory heirs:

1)legitimate children and descendants, with respect
to their legitimate parents and ascendants;
2) In default of the following, legitimate parents and
ascendants, with respect to their legitimate children and
descendants;
3) The widow or widower;
4) Acknowledged natural children, and natural children
by legal fiction;
5) Other illegitimate children referred to in Art. 287.
Compulsory heirs mentioned in Nos. 3, 4 and 5 are not
excluded by those in Nos. 1 and 2; neither do they exclude
one another.
In all cases of illegitimate children, their filiation must
be duly proved.
The father or mother of the illegitimate children of the
three classes mentioned , shall inherit from them in the
manner and to the extent established by this Code.
Art. 888. The legitime of legitimate children and
descendants consists of one-half of the hereditary estate of
the father and the mother.
The latter may freely dispose of the remaining half, subject
to the rights of illegitimate children and of the surviving
spouse as hereinafter provided.

Art. 892. If only one legitimate child or descendant of the

deceased survives, the widow or widower shall be entitled to
one-fourth of the hereditary estate. In case of a legal
separation, the surviving spouse may inherit if it was the
deceased who had given cause for the same.
If there two or more legitimate children or descendants, the
surviving spouse shall be entitled to a portion equal to the
legitime of each of the legitimate children or descendants.
In both cases, the legitime of the surviving spouse shall be
taken from the portion that can be freely disposed of by the
testator.

Art. 872. The testator cannot impose any charge, condition,

or substitution whatsoever upon the legitimes prescribed in
this Code. Should he do so, the same shall be considered as
not imposed.

Art. 904. The testator cannot deprive his compulsory heirs

of their legitime, except in cases expressly specified by
law. Neither can he impose upon the same any burden,
encumbrance, condition, or substitution of any kind
whatsoever.

28. State Articles 827, 842, 856, 870, 906 & 907

Art. 827. If a will, executed as required by this Code,

incorporates into itself by reference any document or paper,
such document or paper shall not be considered a part of the
will unless the following requisites are present:
1) The document or paper referred to in the will must be in
existence at the time of the execution of the will;
2) The will must clearly describe and identify the same,
stating among other things the number of pages thereof;
3) It must be identified by clear and satisfactory proof as
the document or paper referred to therein; and
4) It must be signed by the testator and the witnesses on
each and every page, except in case of voluminous books of
account or inventories.
Art. 842. One who has no compulsory heirs may dispose by
will of all his estate or any part of it in favor of any
person having capacity to succeed.
One who has compulsory heirs may dispose of his estate
provided he does not contravene the provisions of this Code
with regard to the legitime of said heirs.

Art. 865. A voluntary heir who dies before the testator

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

Art. 870. The dispositions of the testator declaring all or

part of the estate inalienable for more than 20 years are
void.

Art. 906. Any compulsory heir to whom the testator has left
by any title less than the legitime belonging to him may
demand that the same be fully satisfied.

Art. 907. Testamentary dispositions that impair or diminish

the legitime of the compulsory heirs shall be reduced on
petition of the same, insofar as they may be inofficious or
excessive.